Non-Corrigé
Uncorrected
CR 2009/17
Cour internationale International Court
de Justice of Justice
LAAYE THHEGUE
ANNÉE 2009
Audience publique
tenue le mardi 22 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 Tuesday 22 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 -
The VICE-PRESIDENT, Acting President: Veu illez vous asseoir. L’audience est ouverte.
La Cour se réunit pour entendre les arguments de l’Uruguay mais avant de donner la parole au
conseil de l’Uruguay, je souhaite indiquer que la Cour a été saisiehier en fin d’après-midi d’un
courrier par lequel l’agent de l’Argentine a so ulevé certaines questions quant au statut de
M.NeilMcCubbin, membre de la délégation ur uguayenne, qui est appelé à prendre la parole
aujourd’hui. Une copie de cette lettre a été communiquée à l’autre Partie qui par lettre reçue ce
matin, a notamment précisé que M.McCubbin pren dra la parole comme avocat et non comme un
expert témoin au sens de l’article 57 du Règlement. La Cour traitera ainsi sa dé claration. Dans sa
réponse, l’agent de l’Uruguay a aussi relevé que M. Howard Wheater et M. Juan Carlos Colombo
agissaient dans une qualité similaire pour l’Argentine, la semaine passée. I shall now give the floor
to Mr. Reichler, Counsel for Uruguay, to continue with his presentation. You have the floor, Sir.
Mr. REICHLER: Good morning, Mr. President, Members of the Court. I will resume today
where I left off yesterday by discussing the or igin of the algal bloom that was observed on
4 February 2009.
THE P ERFORMANCE OF THE PLANT : ARGENTINA S E VIDENCE
(P ART II)
I.T HE ALGAL BLOOM OF 4 FEBRUARY 2009
[1.i].de The Court will likely recall this satellite photo from yesterday1. For your
convenience, it is in today’s judges’ folder at tab 2. It depicts the situation in the Uruguay river and
Ñandubaysal Bay on 2February 2009. In particular, it depicts in red the presence of significant
chlorophyll abundances, indicating significant algal presence in Ñandubaysal Bay, fed by the
Gualeguaychú river in Argentina. And it show s the transport of these chlorophyll and algal
abundances from the Bay into the Uruguay river al ong the Argentine coast just downstream from
the Bay. It also shows that on 2February2009, two days before the algal bloom, there was no
significant presence of chlorophyll or algae at or near the Botnia plant. The section of the river
1CBERS-2B (2 Feb. 2009, 14:02). See also DINAMA Algae Bloom Report (July 2009), p. 10, fig. 2.5, (Spanish
original available via links undeheading) “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 Sep. 2009. - 13 -
adjacent to Botnia is depicted in blue, connoting th e lowest level of chlorophyll and algae. What
this satellite photo shows is that, on 2February 2009, the pre-conditions for an imminent algal
bloom were present in Ñandubaysal Bay, but not in the section of the river adjacent to the Botnia
plant.
2. As I said yesterday, the satellite photo confirms the data produced by Argentina regarding
the water chemistry in the Bay and in the river in the period leading up to the algal bloom of
4February. To summarize very quickly, the water chemistry data collected by Dr.Colombo
established the following, as of late January 2009:
⎯ first, the concentrations of phosphorus and nitrogen in the areas of the river allegedly
influenced by the Botnia plant were unchanged by the plant, during and after its first 15 months
of operation;
⎯ second, the concentrations of phosph orus and nitrogen in the area s of the river adjacent to the
plant were low, relative to other areas of the river and Ñandubaysal Bay, and did not increase
in the period leading up to the algal bloom;
⎯ third, Dr. Colombo’s water chemistry tests showed that chlorophyll, and therefore algae, were
continuously low in the areas of the river allegedly affected by the plant, and that they, too, had
not increased in the period leading up to the algal bloom;
⎯ fourth, by contrast, total phosphorous con centrations, soluble reactive phosphorous
concentrations, and chlorophyll levels indi cative of algae were significantly higher in
Ñandubaysal Bay during the period of Dr. Colombo’s study than they were in areas of the river
adjacent to the plant;
⎯ fifth, in the period preceding the algal bloom, SRP ⎯ soluble reactive phosphorus ⎯ and
chlorophyll were over 350 per cent higher in the Bay than in the river; and finally,
⎯ sixth, for all of the previous reasons, th e conditions necessary for an algal bloom were not
present near the Botnia plant at the beginning of February 2009, but they were present in
Ñandubaysal Bay.
3. The satellite photo shows more. As we di scussed yesterday (CR 2009/16), it shows other
areas of the river, upstream from the Botnia plan t, where conditions for an algal bloom were
present on 2 February. These areas, like Ñandubaysal Ba y, are depicted in red, indicative of high - 14 -
concentrations of chlorophyll and algal proliferations. So what the photo tells us as a whole is that,
while conditions were not present for the origination of an algal bloom in front of the Botnia plant
on 2February, the necessary conditions were present both upriver from the plant, and in
Ñandubaysal Bay.
4. So now, we can attempt to answer the question, on the basis of the evidence, including
especially Argentina’s own evidence, of the origin of the algal bloom that was observed on
4February. That evidence shows that the algal bl oom originated either upstream from the plant,
where the conditions for it were ripe, or downstr eam from the plant, in Ñandubaysal Bay, where
the conditions were also ripe ⎯ depending on which way the river was flowing between
2 February and 4 February.
5. So, which is it? Which way was the rive r flowing between 2February and 4February
2009?
6. Last week, ProfessorSands told us at l east twice that the Uruguay river was flowing in
reverse between 2and 4Februa ry, from downstream to upstream 2. If he was right, then he has
made the case that the algal proliferation that bloomed on 4February originated in Ñandubaysal
Bay, from where it was transported upriver, by the reverse flow, to the site of the Botnia plant. But
was he right? Mr. President, it would certainly be convenient for Uruguay if he were. If the river
flowed in reverse between 2 and 4 February, it w ould indicate that the algal bloom observed on the
latter date had its source in Ñandubaysal Bay, which Argentina has repeatedly told us is not
affected by the effluents from the Botnia plant in its scientific and technical study 3. For this
reason, it is very tempting for Uruguay to simply say we agree with Professor Sands, admit that this
one time he got the evidence right, thank him fo r doing so, and close the book on the 4February
algal bloom. But there are weaknesses in his argument that we must acknowledge.
2For example, CR 2009/12, pp. 42-43, paras. 14 and 15 (Sands).
3See Argentina 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 ecosyst em that is relatively detached from the Uruguay river” and that
the data “shows that the bay is an environment that is dtached from the short term fluctuations of the river”),
para. 4.3.1.2 (pointing to data that “reinf orces the interpretation that the bay is an environment that is relatively detached
from the river”). - 15 -
7. ProfessorSands told us last Tuesday that Argentina had provided “detailed evidence” of
the direction of the river’s flow based on “actual, continuous monitoring...” 4. He said that this
5
had been provided “for a full year of monitoring” . Well, not quite. To be sure, he attempted to
illustrate the comprehensiveness and professionalism of Argentina’s measuring of the river current
by using two charts taken from Chapter2 of Ar gentina’s Scientific and Technical Study. These
charts portrayed daily flow data for July2008 and for February2009. Except that the chart he
displayed forFebruary2009 did not cover the entir e month. It covered only from 10February to
28 February. [Slide 2.] Here, and also at tab3 of the judges’ folder, are Argentina’s charts for
January and February 2009 ⎯ not July2008 and February 2009 but January and February2009.
These are taken from Chapter2 of their study. The chart forFebruary is the same one
ProfessorSands displayed in court last Wednesday. As you can see, when the two charts are put
together, as February follows January, there is no flow data for the period between 27 January and
9February, the period leading up to and surro unding the 4February algal bloom, during which
Argentina insists the river flowed in reverse.
8. Naturally, this critical gap in Argentina’s data aroused our curiosity. So we went back and
reviewed their flow data underlying the charts. We found that they had recorded flow data from
6
their automatic current meter, which ProfessorSands proudly described last week , covering the
entire 131-day period between 20 November 2008 a nd 30 March 2009, except for the most critical
span of 14days. They had no data for those days. Did they simply fail to collect any actual
measurements on those 14 days? Did they lose them ? Or did they have some other reason for not
presenting them to the Court?
9. In fact, there is good reason to question the utility of all the flow measurements that
Argentina did submit. Argentina acknowledges that it took all its measurements of current flow
from a single point in the river, located “upstream of the Botnia plant on the Argentine side of the
navigation channel at kilometre 105” 7. [Slide 3.] Here, and at tab 4, is the approximate location of
4CR 2009/12, p. 40, para. 11.
5
Ibid., p. 41, para. 13.
6Ibid., pp. 40-41, paras. 11-13.
7Argentina Scientific and Technical Report, Chap. 2, p. 5. - 16 -
the point where Argentina took its measurements. We say approximate because we do not know
the exact location, because Argentina has not disclosed it. As you can see, it is not in the main
channel of the river, but in a side channel close to the Argentine shore, where the depth is about
6 metres. The main channel ⎯ in white ⎯ is across the river, closer to the Uruguayan side, with a
depth of more than 20 metres ⎯ more than three times deeper. The Botnia plant is not only across
the river, but several kilometres downstream from where Argentina took its measurements. The
river at this point is nearly 1,500 metres wide. You cannot make any conclusions about the flow of
the river, especially a river as wide and as deep as the Uruguay river, from what happens at a single
point, especially when that point is at a rela tively shallow depth, far removed from the main
channel. ProfessorSands himself acknowledged that the river flows in different directions at the
same time 8. It is very possible that the current in the shallower water along the Argentine bank was
flowing upstream at the same time as the main curre nt of the river, which follows the much deeper
main channel, closer to Uruguay, into where th e Botnia effluent is discharged, was flowing
downstream. That is why nothing can be concluded one way or the other about the direction of the
river’s flow from Argentina’s measurements. And certainly the measurements tell us nothing about
what was happening in lateJanuary and early February because no such measurements were
provided by Argentina.
10. To be sure, Uruguay does not reject the possi bility that the river flowed in reverse just
prior to the 4 February algal bloom. But there is also the possibility that the river was flowing in its
normal downstream direction prior to the algal bloom.
11. Evidence supporting this latter scenario in cludes the records maintained by Uruguay’s
State Sanitary Works, OSE by its Spanish acron ym, which is responsible for providing potable
drinking water to the Uruguayan communities along the Uruguay river. Algae must be removed
from the river water by OSE before it is fit to drink. [Slide 4.] If we compare OSE’s records, at
tab5, from its water treatment plant around 100km upstream, in Paysandú, on 26January2009,
with those from its Fray Bentos plant, just downstream from Botnia, on 5 February, we can see that
in Paysandú on 26January, the concentration of algae in the river water was more than
8
CR 2009/12, p. 40, para. 10 . - 17 -
9
1,732.4 organisms per millilitre , which, of course, is substantially higher than the 1,055 recorded
10
in Fray Bentos on 5 February, at the height of the bloom near the Botnia site .
12. The upriver origin of most algal blooms in the Uruguay river is further indicated by the
11
historical evidence . Historical studies show that algae proliferation first became a concern in
1979, after the construction of the dam at Salto Grande, more than 240 km upriver from the Botnia
plant, and 140km upriver from Paysandú 12. According to the authors of a 1982 study, algal
blooms were first observed in the Salto Grande reservoir immediately after it filled up and
13
operations began in 1979 . The algae, it was written, prolifer ate in the stagnant waters of the
reservoir, especially during the hot summer months of January andFebruary. The dam sends the
water with the algae downstream after passing th rough its turbines or spillway. In summer, to
conserve water, less of it is allowed to flow through the dam. These low water flows, together with
the high temperatures and bright sunlight of summer, combine to present ideal environmental
conditions throughout the entire length of the river for algal blooms. This is well documented in
the literature.
Mr. President, with your indulgence, may I point out that a footnote was left out at that point
of my speech accidentally. If we could consider this for the compte rendu footnote30.5, and it
should just say “Ibid.” because it has been cited previously 14.
The VICE-PRESIDENT, Acting President: Please supply the correction.
Mr. REICHLER: We shall. Thank you, Mr. President.
13. And it is actually the upstream origins of algal blooms on the river that are actually
confirmed by Argentina’s own Scientific and Technical Study. This is from Chapter 4 of study at
page 115 ⎯ of Argentina’s study at page 115:
9DINAMA Algae Bloom Report, Ann. 1.
10Ibid., Ann. 2. Also available in Uruguay’s Comments on New Documents, 15 July 2009, Ann. C4.
11OSE Report on Cyanobacteria, Uruguay’s Comments on New Documents, 15 July 2009, Ann. C7 (“The bloom
in the first months of 2009 coincides with the typical behavior of algae in transit from the north to the south, which is
historically expected in the Uruguay River”).
12DINAMA Algae Bloom Report, pp. 14-16.
13Ibid., pp.14-15 (citing R. Quirós & L. Lucchini, “Características limnológicas del Embalse de Salto Grande,
III: Fitoplancton y su relación con parámetros ambientales,” Rev. Asoc. Cienc. Nat. Litoral, 13: 49-66).
14
Ibid. - 18 -
“Algal blooms may appear in the Uruguay River during the warm season.
These blooms are produced by explosive growth of algae, particularly cyanobacteria,
responding to nutrient enrichment, mainly phosphate, among other compounds present
in detergents and fertilizers. Buoyan t cyanobacteria may also produce large
aggregates in the river surface, which subject to wind-driven displacements, usually
concentrate forming visible patches . . .”
Chapter 4 of Argentina’s Study further states, at page 37:
“The presence of potentially toxic Cyanobacteria species is a common
phenomenon... in many water systems all around the world... and for this reason
they are continuously monitored by institu tional organizations... In the Uruguay
River, [I am continuing with my quote from Argentina’s Study, ‘in the Uruguay
river’] their presence is also favored by the Salto Grande Reservoir . . .”
as I mentioned a few moments ago, and which I said, is where most algal blooms originate, more
than 240 km upstream from the Botnia plant 15.
14. Dr. Colombo told the Court on Wednesday of a “higher abundance” of algae in the area
surrounding the Botnia plant in January2009 1. This, of course, contradicted his own study, in
Chapter3 of the report, which found low levels of chlorophyll at all the so-called Botnia sites in
January 2009 ⎯ which I discussed yesterday ⎯ and, in fact, that the lowest levels of chlorophyll
17
of all, of all the sites he studied, were those he called the Botnia influence sites . Where there is
no chlorophyll, there is no algae. Perhaps he w as referring on Wednesday to a different chapter of
the report, Chapter4, where the au thors claim to have found elevat ed levels of cyanobacteria at
some, but not all, of the Botnia sites on one o ccasion. Significantly, in that study, which you can
find at page82 of Chapter4, the cyanobacteria level at Botnia site3, the one closest to and most
directly influenced by the plant, was very low ⎯ even under their own study ⎯ significantly lower
than at both sites in Ñandubaysal Bay. There were more elevated levels only at the two so-called
Botnia sites directly in the path of sewage di scharges from Fray Bentos and Gualeguaychú. I
showed these test sites in a slide yesterday. All th at this experiment proved is that the discharge of
human waste and other sewage brings a lot of bacteria, algae and other undesirable substances into
the river. That, Mr. President is undisputed. But it says nothing about the effluent from the Botnia
plant itself.
15DINAMA Algae Bloom Report, p. 16.
16
CR 2009/14, p. 44, para. 44 (Colombo).
17Argentina Scientific and Technical Report, Chap. 3.1, p. 31, table 8 and Chap. 3.2, para. 3.2.3, table 8. - 19 -
15. The evidence all points to the same conclusion. The algal bloom of 4 February 2009 did
not originate at the site of the Botnia plant and was not caused by emissions from the Botnia plant.
In his own chapter of the Scientific and Technical Study, Dr.Colombo had this to say about the
cause of the algal bloom: “The cyanobacteria bloom from February 4th . . . occurred at times when
nitrates are lower and the temperature is very high, both factors that favor the development of these
organisms specially the nitrogen-fixing ones.” 18 Where does he say the nitrates were lower on
4 February, such that the development of cyanob acteria algae was favoured? In Ñandubaysal Bay,
that is where he says the conditions were favourable, not in the waters adjacent to the Botnia site 19.
II. EFFLUENTS OTHER THAN PHOSPHOROUS AND NITROGEN
16. Mr.President, I will conclude the part of my discussion on water chemistry and water
quality which I began yesterday by addressing, very briefly, the effluents other than phosphorus
and nitrogen of which Argentina complained last week. Just as with phosphorus and nitrogen,
Argentina has produced no evidence that any of these effluents has failed to disperse quickly and
completely, and wash away. Just as with phosphorus and nitrogen, Argentina has failed to show
any increase in concentration levels for any of these effluents in areas of the river allegedly affected
by the Botnia plant. What are these other efflue nts? Dr.Colombo mentioned two, in his speech
last Wednesday: sodium and AOX, the presence of wh ich had increased, he told the Court, in the
20
area of Botnia’s influence . This was very surprising to us. I cannot say, in the case of
Dr. Colombo, that he does not know the evidence. Bu t it appears, in this instance, he forgot some
of it. Apparently he did not review his own study very carefully before addressing the Court about
it. Had he done so, he would have come across the following language, from Chapter 3, page 22:
“[T]he observed sodium levels do not imply any risk . Moreover, sodium concentrations registered
in the Bellaco Bay ([site]N6) are higher due to the influence of the Gualeguaychú River discharge.”
Bellaco Bay, as we discussed yesterday, is a part of Ñandubaysal Bay. Same Chapter, pages27
and 28: AOX is “lower than the German standard of 25micrograms [per litre]”. And: “AOX
presents a series of oscillations... with several peaks... and a general increasing trend this
18
Ibid., p. 25.
19
Ibid., p. 24.
2CR 2009/14, p. 45, para. 15 (Colombo). - 20 -
21
summer, especially in Bellaco Bay ([site]N6) in December 2008.” Bellaco Bay, as I just said, is
part of Ñandubaysal Bay which, of course, according to Argentina, is not influenced by the Botnia
plant 22.
17. On Wednesday, Professor Sands ticked off a la undry list of other substances that he said
were emitted by the Botnia plant and caused harm to the river 23. He cited no evidence in support of
these allegations. He made no references to concentration levels, either before or after Botnia
started operating, and neither Dr.Colombo nor Dr.Wheater saw fit to mention any of these
effluents as problems. So I do not think I need to take up the Court’s time in responding, at least in
this round, except in the case of two of those substances: iron and arsenic. According to
Argentina’s Scientific and Technical Study, iron, which is one of the most common elements in the
earth’s crust, is one of “the natural components [the natural components] of aquatic ecosystems and
essential elements for life...”. Complaining a bout iron, the main sources are “atmospheric dust,
sediments and soils deriving from the earth’s crust erosion” 24. Somuchforiron. Weall
understand ⎯ we all understand ⎯ why ProfessorSands mentioned arsenic. Emotional impact,
not evidence. It was an obvious scare tactic. In fact, it would not be a huge exaggeration to say
that quite a bit of Argentina’s presentation last week was one enormous scare tactic. Dire warnings
that if the Court does not shut down this plant, it will not only kill the 1975 Uruguay River Statute,
but the entire edifice of international environmenta l law. But no evidence to support these threats.
The Court will undoubtedly take note, when it reads the compte rendu, of the vast number ⎯ the
vast number ⎯ of factual assertions made by ProfessorSands and his colleagues that have no
citations, no footnotes, to any of the evidence in the record of this case. These are all empty
25
statements, of little value. And Professor Sands’s reference to arsenic is typical .
21Argentina Scientific and Technical Report, Chap. 3.2, p. 28.
22See Argentina 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 ecosyst em that is relatively detached from the Uruguay river” and that
the data “shows that the bay is an environment that is de tached from the short term fluctuations of the river”),
para. 4.3.1.2 (pointing to data that “reinf orces the interpretation that the bay is an environment that is relatively detached
from the river”).
23CR 2009/15, p. 19, para. 18 (Sands).
24Argentina Scientific and Technical Report, Chap. 3.2, para. 4.4.4.
25CR 2009/15, p. 20, para. 18 (Sands). - 21 -
Although he does have a footnote there, it is to a report by Dr. Wheater written before the Botnia
plant started operating. There are no citations to Dr.Colombo’s study, or to any actual or even
contrived measurements of arsenic emissions by Botn ia, or arsenic concentrations anywhere in the
river. In fact, we were unable to find any mention of arsenic in Dr. Colombo’s study. He certainly
did not identify it as a problem. And there is an explanation for that. DINAMA’s testing of water
26
chemistry confirms that the Botnia plant emits no measurable levels of arsenic .
18. We also heard last week about nonyl phenols, and dioxins and furans. Since these
substances are alleged to have caused harm to aquatic organisms, incl uding fish, I will address
them in connection with those allegations. I turn to them now.
III.C LAMS
19. Dr. Colombo said on Wednesday (CR 2009/14) that the Botnia plant has harmed clams . 27
In particular, he said that effluents from the plant have caused clams to lose lipids, that is, to lose
fats. He said that this is due to Botnia’s emission of nonylphenols, which supposedly interfere with
the clam’s metabolic processes 28. Mr.President, allow me to inform you how Dr.Colombo and
Argentina came to this conclusion.
20. First, they dug up the clams from their natura l habitat, which is in the sediments, that is,
the mud, at the bottom of the river near the Argentine shore 2. This is where the clams live,
because this is where their food source is located. Dr. Colombo writes, in Chapter 3 of the study,
that the clams feed off the organic detritus in the river’s sediments through “filter and pedal
feeding” 30. Dr. Colombo’s assistants pried the clams open and measured how much fat they had in
26
Uruguay’s Submission of New Do cuments, 30 June 2009, Ann. S2, DINAMA Performance Report
for the First Year of Operation of the Botnia Pl ant and the Environmental Quality of the Area of
Influence (May 2009), p.8/33, table2; DINAMA 2009 Water Quality Report, p.18 , para.4.1.10.1. Original Spanish
version available via a link entitled “Informe Agua Semest re Ene-J2u0n09” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_docman&Itemid=312; DINAMA July 2009 on
Botnia’s Environmental Performance, p. 5, table 2 and p. 15, table 4, original Spanish version available
via a link entitled “Informe Emisiones Semestre N2ov.-M009” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_docman&Itemid=312. Where relevant, translations
submitted to the Court on 14 September 2009.
27
Argentina Scientific and Technical Report, Chap. 3.1, p. 4, and Chap. 3.2, paras. 1 and 4.7.1.
28Ibid., Chap. 3.1, p. 4, and Chap. 3.2, para. 4.7.1.
29Ibid., Chap. 3.1, p. 10, and Chap. 3.2, para. 4.7.1.1.
30
Ibid., Chap. 3.2, para. 4.7.1.1 (indicating that clams normally employ “filter and pedal feeding on detritus on the
surface sediments in the beach”). - 22 -
them. Then they dug up some more, put them in a net bag and suspended them from a buoy in the
current, under water, above the river bottom 31. [V-32.] Here are two images illustrating what they
did. These come from Chapter3 of Dr.Colombo’s study, and he displayed them to the Court on
Wednesday. They are in today’s folder at tab6. As you can see, the clams were left in a
suspended state, far remove d from their natural habitat ⎯ and, especially, from their food
source ⎯ where they were subjected to constant battering by the river current for months at a time,
32
in some cases up to 180days . Then they were pried open ag ain and found to have lower fat
levels 33. In other words: they lost weight.
21. Now, this is quite an experiment. The conclusion is as odd as the experiment itself.
Dr.Colombo and his team found that the reason the clams lost weight was because something in
the water interfered with their metabolism 34. Apparently they did not consider the possibility that
the clams lost weight because, for several months, they had nothing to eat.
IV. N ONLYPHENOLS
22. And what was it in the water that Argentin a claims to have caused this weight loss in
35
clams? Nonylphenols . Even if we were to accept this unsupported hypothesis, it would still not
help Argentina’s case, because th e Botnia plant does not use nonylphenols in any of its processes,
including the cleaning of the plant.
23. Professor Sands pointed out on Monday of last week that Uruguay had never responded
to Argentina’s concerns about nonylphenols un til 15July of this year, when it submitted the
affidavit of Dr.Alicia Torres, the Director of DINAMA 36. This was a rhetorical exercise by
ProfessorSands, since he knows, or at least he should know, that Argentina never raised
nonylphenols as a concern until it subm itted its Scientific and Techni cal study two weeks earlier,
on 30 June.
31Ibid., Chap. 3.2, para. 3.1, pictures 2 and 5.
32
Ibid., Chap.3.2, para.3.1, picture 2 (indicating that clam s were left to “bioaccumulate” for between 0.5 and 6
months).
33
Ibid., Chap. 3.2, para. 4.7.1.1.
34Ibid., Chap. 3.2, para. 4.7.1.1.
35Ibid., Chap. 3.1, p. 4.
36CR 2009/12, p. 48, para. 24. - 23 -
37
24. Professor Sands discussed and parsed the affidavit of Dr. Alicia Torres at some length .
In it, she testified that the Botnia plant “do es not generate” and “does not use nonylphenol [or]
derivative extholixates in any of its production and wood pulp bleaching processes” 38.
Professor Sands tried to read this language as t hough it were designed to leave open the possibility
that Botnia may use nonylphenols in bleaching or cl eaning its pulp. There is no such artfulness.
39
Dr. Torres represented to the Court that Botnia does not use nonylphenols in any of its processes .
The language admits of no ambiguity. It includes bleaching and cleaning of pulp.
25. Argentina claims that it has no knowledge of what chemicals or other substances Botnia
40
uses in its pulp production or its plant cleaning . So how can they say Botnia uses nonylphenols?
Their main argument is that Dr.Colombo cl aims to have found increasing quantities of
nonylphenols in the waters adjacent to the plant. He told the Court that he did not find similar
41
increases anywhere else . There is a good reason for this. He does not appear to have looked
anywhere else. [V-new.] Here, and at tab7, are the test results, from his “study” of
42
nonylphenols . The Court will recall that the test sites to the left, up to U1 are upstream control
sites. The next three, U2, 3, 4, are the alleged sites of Botnia influence. The next three, N5, N6, I7,
are in Ñandubaysal Bay. There are almost no data for any of the three test sites in Ñandubaysal
Bay. Were no tests made there? Or were the r esults so unhelpful to Argentina’s claim that they
had to be discarded? How can he tell the Court that nonylphenols are higher near the Botnia plant
when he has no measurements for anywhere else? How could he know? He certainly has no basis
for saying the levels near the Botnia plant increased after Botnia began operating ⎯ because he has
no water chemistry baseline data of any kind. This, as I said earlier, is a major flaw that ⎯ as any
scientist of his background would surely know ⎯ raises serious questions about the reliability of
many aspects of his study.
37
CR 2009/12, pp. 49-50, para. 27; CR 2009/15, pp. 17-18, para. 13.
38
Affidavit of Agr. Eng. Alicia Torres, Director of DINAMA, 13 July 2009, Uruguay’s Comments on Argentina’s
New Documents, 15 July 2009, Ann. C24.
39
Ibid.; emphasis added.
40CR 2009/15, p. 16, para. 12 (Sands).
41CR 2009/14, pp. 46-48, paras. 18-19.
42
Biogeochemistry Data tab9leon password-pr otected Argentine website, available at
http://www.mrecic.gov.ar/scientificdata (username: PVA; password: SAyDS). - 24 -
26. In fact, doubts about Botnia’s emission of nonylphenols were raised by Dr.Colombo
himself. He tells us, at page39 of Chapter3 of the Scientific and Technical study, that modern
pulp mills like Botnia’s generally do not use or emit nonylphenols. Dr.Colombo even
acknowledges that Canadian pulp mills have not u sed or emitted nonylphenols for the past ten
years 43. The Botnia plant is more modern than th ose in Canada, and conforms to the latest
European Union standards. So why would it use any of these substances?
27. To be sure, there are nonylphenols in the ri ver. Where else could they have come from?
Dr.Colombo tells us that too, also in Chapter3 of the Scientific and Technical study, at page39.
Here he says that nonylphenols are discharged from industrial facilities that produce textiles,
leather, metal, oil, polymers, water-based paints , detergents, plasticizers, pesticides, and personal
44
care products . In other words, from exactly the kinds of factories currently operating in the
Gualeguaychú Industrial Park, which discharge their effluents every single day into the
45
Gualeguaychú river, and from there directly to Ñandubaysal Bay . No wonder Dr.Colombo did
not test for nonylphenols in Ñandubaysal Bay! He would have found them there, at much higher
levels than at or near Botnia.
28. Mr. President, standing back for a moment, the entire debate on nonylphenols has a kind
of surreal aspect to it. What are we fighting about? Uruguay is convinced that there is no use of
them by Botnia. Argentina says it believes there is. At any rate, both Parties agree that Botnia
should not use any nonylphenols in its production, cleaning, or any other processes. The two
Parties are on the same side of this issue. Is not the solution for both of th em to work together to
satisfy each other as to whether nonylphenols are bei ng used or not? This matter could have been
resolved long ago, if Argentina had come to Ur uguay with its concerns when they first arose.
Instead, Argentina preferred to hide the data, and sav e it for use in this lawsuit. But it is never too
late for co-operation. If, if, contrary to ever ything Uruguay believes to be true, Botnia is using
nonylphenols, Uruguay will put a stop to it. After all, the water just a short way downstream from
4Argentina Scientific and Technical Report, Chap. 3.1, p. 39.
44
Ibid., Chap. 3.1, p. 39.
4RU, para. 2.82. - 25 -
the plant is drunk every day by the 20,000 Uruguayans who live in Fray Bentos and whose
protection is DINAMA’s duty.
V. R OTIFERS
29. I come next to rotifers. These are microscopic organisms. Argentina claims that it found
46
a high percentage of deformed rotifers near the Botnia site . Dr. Colombo’s data are so plagued
with flaws that they are meaningless. I will reserve further comments on Argentina’s methodology
and data until the next round, and address the subject then only if Argentina persists in talking
about rotifers. But the main point here is that Argentina blames the deformations in rotifers on the
nonylphenols supposedly used and emitted by the Botnia plant 47, and Botnia does not use, or emit,
nonylphenols.
VI. F ISH
30. I come now to fish. Mr.President, Dr.Colombo told the Court on Wednesday that the
levels of dioxins and furans in fish have increased since operation of the Botnia plant
48
commenced . But Argentina’s argument that the Botnia plant has harmed fish is completely
unproven. The “study” on which this opinion is based has absolutely no credibility.
31. To start with, the claimed increase in dioxins and furans in fish is, by Dr. Colombo’s own
admission, very minor. In his study, in Chapter3, he acknowledges that, even now, the levels of
dioxins and furans in fish that inhabit the Uruguay river are “very low” 49 ⎯ indeed, they are so
low that, according to Dr.Colombo, a person coul d safely eat a huge quantity of these fish, more
than 100 kg per year, without any risk to his or her health 50.
32. But his study is deeply flawed. The unde rlying data can only be found by accessing
51
Argentina’s password-protected website , access to which was provided only in Argentina’s
46CR 2009/12, p. 31, para. 31 (Sands).
47
Argentina Scientific and Technical Report, Chap. 3.1, p. 4.
48
CR 2009/14, p. 51, para. 25.
49Argentina Scientific and Technical Report, Chap. 3.1, pp. 5 and 45.
50Ibid., Chap. 3.1, p. 45.
51
While Dr.Colombo provided some data on fish testi ng in his 30June2009 Report, no data on dioxins and
furans was included. See Argentina Scientific and Technical Report, Chap. 3.2, para. 4.7.2, table 21. - 26 -
submission of 15 July 2009, and only if you carefully read footnote 16 . Combined with the tables
presented in Chapter 3 of the study, the online data show that Argentina caught, and tested, 69 fish
between November2007, when the Botnia plant started operating, and August2008 53, and that it
caught and tested another 14fish betweenFebruary and April2009 54. Thus, a total of 83fish,
according to Argentina’s study, were caught and tested during the operational period. Yet, the
study’s conclusions are based on data from only 23fish 55. No data are provided on the other
60fish that were tested, more than two thirds of the total 56. Did Argentina lose them? Did they
simply forget they had these data when it came ti me to run the numbers? Or did they decide to
omit data unfavourable to their claims?
33. When you exclude the data collected from 60 out of 83fish, you end up with a very
small sample ⎯ only 23 fish ⎯ and make it possible for even one outlier to dramatically skew the
averages. And that is just what happened here wi th the Sabalo fish we heard so much about last
week. One of the Sabalo caught by Argentina w as found to have dioxin and furan levels almost
57
11times higher than the mean . Only by including this one very sick fish, and excluding some
60 others that, presumably, were not so unwell, w as Dr. Colombo able to adjust the average levels
in the total population of Sabalo to a sufficient degree to make it appear that dioxins and furans had
increased ⎯ very slightly, and even then not to unhealthful levels ⎯ since the Botnia plant started
operating.
34. Of the 23fish that were chosen for inclus ion in the study, the data show that at least
58
19were caught in Ñandubaysal Bay , which is not influenced by emissions from the Botnia
52
Biogeochemistry Data, table 19 on password-protected Argentine website, available at
http://www.mrecic.gov.ar/scientificdata (username: PVA; password: SAyDS).
53
Argentina Scientific and Technical Report, Chap. 3.2, para. 3.1, tables 3 and 5.
54
Ibid., Chap. 3.1, p. 11, table 14.
55
Ibid., Chap. 3.2, para. 4.7.2, table 21; Biogeochemical Data, table 19 on password-protected Argentine website.
See also Chap.3.1, p.26, fig.26 (t op) (demonstrating that entire fish argumen t is based on data collected through
Aug. 2008, which is covered by Chap. 3.2).
56
See Argentina Scientific and Technical Report, Chap.3.1, pp.45-56; Chap.3.2, pa ra. 4.7.2; Biogeochemical
Data, table 19 on password-protected Argentine website.
57
Biogeochemical Data, table 19 on password-protected Argentine website (showing that one Sabalo caught in
July 2008 exhibited dioxin and furan ⎯ PCDD/F ⎯ levels of 66.5 pg/g ww when all others exhibited an average of only
6.1 pg/g ww).
58
Argentina Scientific and Technical Report, Chap. 3.1, p. 11, table 5, and Chap. 3.2, para. 3.1, table 5. - 27 -
59 60
plant . Even the sick Sabalo that skewed th e test results was caught in Ñandubaysal Bay . So
there is no link at all between the plant and at least 19 of the 23fish used in Argentina’s study.
Why were all of these fish swimming in Ñandubay sal Bay? Argentina says the fish “actively
search organic hot spots [such] as sewages and industrial effluents constituting a critical pathway of
61
persistent pollutant focalization” . Ñandubaysal Bay certainly fits that description. It is where the
industrial effluents from at least 25factories located in the Gualeguaychú Industrial Park, and the
sewage from the city of Gualeguaychú, with more th an 75,000inhabitants arrive, courtesy of the
62
Gualeguaychú river .
35. So much for fish. But there is more to say about dioxins and furans. Mr. President, my
colleague Professor Boyle has told you that DINAMA, and EcoMetrix, the consultants to the IFC,
have concluded, based on the monitoring data, that Botnia does not discharge dioxins and furans
into the Uruguay river. Yet, you heard Pr ofessorSands and his colleagues say on numerous
occasions last week that dioxins an d furans in the waters near the Botnia site have increased since
the plant started operating. They said these polluta nts spill out of the plant’s discharge pipe, and
even from its smokestacks, and somehow end up in the river 63. Well, I will say it again,
Professor Sands just does not know the evidence. In this case, perhaps, he can be excused, because
there is no evidence to know. Professor Sands’s re marks in this regard, like his factual assertions
to which I responded previously, are not cited to the record, as the Court may confirm by reference
to the compte rendu for last Thursday, at pa ge20. Argentina has presented no evidence
whatsoever ⎯ absolutely none ⎯ on levels of dioxins and furans in the water, in any part of the
64
water, much less any contributions of di oxins and furans by the Botnia plant . If they have taken
59Ibid., 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 relatively detached from the river”).
60See Biogeochemistry Data, table19 on password-protecte d Argentine website (indicati ng that the sick Sabalo
was caught in July 2008); Argentina Scientific and Technical Report, Chap. 3.2, para. 3.1, table 5 (illustrating that all fish
caught after Nov. 2007 and Aug. 2008 were caught in Ñandubaysal).
61Argentina Scientific and Technical Report, Chap. 3.1, p. 5.
62CMU, Vol. X., Ann. 224, p. 40.
63For example, CR 2009/15, para. 19 (Sands).
64
See Argentina Scientific and Technical Report, Chap.3. 1, pp.13 and 43-46 (establishing that only sediments
and fish were tested for dioxins and furans). - 28 -
any measurements of dioxins and furans in the water, they have not supplied them to the Court. At
least not yet.
36. Perhaps they will somehow appear between now and next week on the special website
created by the Argentina Foreign Ministry especially for this case, and hence qualify, in
Argentina’s interpretation, as “readily available documents”, and therefore admissible evidence,
under Article 56(4) of the Court’s Rules. Prof essorSands criticized Uruguay last week for its
65
reliance on official DINAMA monitoring reports , which were released to the public at a press
conference, reported on extensively in the press, including the Argentine press, and published on
DINAMA’s regular website, as is the custom with all such reports, more than a month before these
hearings began. Due to the public nature of th ese reports, and their extensive coverage in the
Argentine press 66, there can be no doubt that Argentina’s team, if not ProfessorSands himself,
have had them in their possession for a long time. In fact, Argentina’s specially created website
includes a response to these very documents, confirming Argentina’s timely access to them.
37. ProfessorSands said that Argentina would “follow” Uruguay’s example in its use of
67
readily available documents . “Follow”? Many of the documents you saw last week, especially
as used by Dr.Colombo and Dr.Wheater, were seen by our side for the first time when they
flashed up on the video screen. It turns out they were placed on this special website created
especially for this case by th e Argentine Foreign Ministry ⎯ the URL is:
http://www.mrecic.gov.ar/publicdocuments/. They were placed on this special website, some of
them, on 11 and 12 September, the weekend before these hearings began. Now, in order to access
the site, for which, as of last week, there was no link from any other Argentine Government
website, you would have to know in advance of the website’s existence and you would have to
65
CR 2009/14, pp. 53-54, para. 2 (Sands).
66For example, Diario El Argentino, “Report without surprises and with a prize for Botnia: The cellulose plant of
Finnish company Botnia, whose entry into operation led to the worst confrontation in decades between the governments
between the governments of Uruguay and Argentina, has an ‘excellent’ environmental performance, according to an
official report released this Monday” (11 Aug. 2009), original Spanish version available at
http://www.diarioelargentino.com.ar/notas.php?id=64378; Diario La República , “Effluent Loads Diminish”
(11Aug.2009), original Spanish version available athttp://www.larepublica.com.uy/politica/376125-bajan-vertidos-de-
efluentes; Diario El Telégraf o, “According to Monitoring Committee: Botnia complies with environmental standards
and improves performance” A 11g0.9), original Spanish version available at
http://www.eltelegrafo.com/index.php?seccion=locales&fechaedicion=2009-…. Translations were submitted
to the Court on 14 Sep. 2009.
67CR 2009/14, p. 54, para. 2 (Sands). - 29 -
know its exact URL, which was never provided to Uruguay until we saw the documents last
Monday. In other words, this specially created Argentine website is not readily accessible, except
to the members of Argentina’s team. The website bears this explicit warning:
“The data and materials cannot be used for purposes other than the proceedings
before the International Court of Justice in the ‘case concerning Pulp Mills on the
River Uruguay (Argentina v. Uruguay)’, without express written permission from the
Argentine Secretariat of Environment and Sustainable Development (Secretaría de
Ambiente y Desarrollo Sustentable). Any unauthorized use by any person or entity,
68
for any reason, will render them responsible under the law.”
Readily accessible? Only if you know the website exists. Only if you had the URL and only if you
want to risk prosecution in Argentina. Despite this, Mr. President, we welcome Professor Sands’s
statement that Argentina is committed to full transparency in these proceedings 69.
38. But the issue of whether a party before the Court can place self-serving documents on a
non-disclosed website of its own on the very eve of oral hearings, two days before they begin, or
even during the hearings themselves, and then feel free to use them as “readily available
documents” may be one the Court might wish to think about. What was done last week by
Argentina is already in the record. But Uruguay would certainly object if Argentina were to place
any new documents on its restricted-access website during the course of these oral hearings, and
attempt to use them as “readily available documents” in the second round.
39. Mr. President, as I said a few moments ago, Argentina has submitted nothing on the
presence of dioxins and furans in the water. They have only conducted a study of dioxins and
furans in sediments 70. Dr.Colombo described it last Wednesday. But what he neglected,
apparently, to tell the Court is that all the sediments he tested, or at least all the ones he reported on
in the 600-page study, were from Ñandubaysal Bay 71. None of the sediments that formed the basis
72
for Argentina’s claims of increased accumulation rates were from the river proper, let alone the
68See http://www.mrecic.gov.ar/publicdocuments/index_en.php (last visited on 21 Sep. 2009).
69CR 2009/14, p. 54, para. 2 (Sands).
70Argentina Scientific and Technical Report, Chap. 3.1, pp. 4-5 and 43-44.
71
See Argentina Scientific and Technical Report, Chap. 3.1, p. 44 (“The analysis of a 45 cm long sediment cores
[sic] collected in 2006 in station N6 was carried out so as to confirm thtemporal increasing trend observed in the
superficial sediments. This place in the Bellaco Bay is extremely stable... Thes e data [from the core sample] were
complemented with those of superficial sediments collected in Bellaco Bay (N6) from November 2007 to February 2009.
The results show that the accumulation rate of PCDD/F in se diments multiplied by 22 times at present...”); emphasis
added.
72CR 2009/12, p. 48, para. 23 (Sands). - 30 -
73
part of the river allegedly influenced by the Botnia plant . Even so, Dr.Colombo concludes in
Chapter3 of the study that, although sediments in Ñandubaysal Bay show increasing levels of
dioxins and furans, these still remain “very low” and “lower than the reference values of the
Canadian Sediment Quality Guidelines” 74. But more important, this is all confined to Ñandubaysal
Bay, which Dr.Colombo tells us repeatedly throughout his study, is not affected by the Botnia
plant 7.
40. In sum, Mr. President, distinguished Memb ers of the Court, Argentina has submitted no
evidence ⎯ no evidence ⎯ that the Botnia plant has contri buted any dioxins or furans, in any
amounts ⎯ either to the water or the sediments of the Uruguay river.
C ONCLUSIONS
41. Mr. President, I have come to the end of what I truly regret has been a very long speech.
I am sure it seemed even longer to you, and your distinguished colleagues on the Court, than to me.
Although I am extremely grateful for the time and patience you have extended to me, I apologize
for consuming so much of both. Uruguay is awar e that it is not customary for a single speaker to
remain at this podium for such a long time. We hope you will forgive us for making the decision
that it might prove to be more helpful to the Court if we were to address Argentina’s evidence on
harm to the river and to aquatic species, in a single speech, and by a single speaker. It is
unfortunate that you had to receive it fr om one with an infelicitous American ⎯ in fact worse yet
New York ⎯ accent. For that I apologize, as well.
42. I will not burden the Court with lengthy conclusions. I will emphasize only these points.
43. The evidence shows that Uruguay carefully , deeply and correctly assessed the suitability
of the Fray Bentos site for a pulp mill of Botnia ’s magnitude, starting long before construction of
the mill was authorized. Uruguay’s analysis of site suitability included, in particular, a detailed and
highly sophisticated analysis of river flow, including reverse flow and velocity. Uruguay
7Ibid.
7Argentina Scientific and Technical Report, Chap. 3.1, p. 43.
75
See Argentina 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 ecosyst em that is relatively detached from the Uruguay river” and that
the data “shows that the bay is an environment that is dtached from the short term fluctuations of the river”),
para. 4.3.1.2 (pointing to data that “reinf orces the interpretation that the bay is an environment that is relatively detached
from the river”). - 31 -
determined that in assessing the capacity of the river to accept Botnia’s effluents, it should presume
a very conservative reverse flow frequency of 29 per cent. It calculated that at that frequency, and
with equally conservative presumptions about flow velocity, the river could safely accept all of
Botnia’s effluents without risk of any harm, let alone significant harm , to water quality or aquatic
species, including fish. Uruguay shared all of its information, calculations, analyses, assessments
and conclusions with Argentina in timely fashion, during the 2005 GTAN consultations, before
construction of the plant was authorized. The IFC and its independent experts agreed in all
respects with Uruguay’s conclusions in these regards.
44. After more than 18 months of operation, the Botnia plant has not harmed water quality in
any respect. In particular, its effluents have not increased the concentration levels of phosphorus or
nitrogen, or any of the other substances mentione d by Argentina. As Uruguay and the IFC and its
independent experts predicted, all of these efflue nts have been quickly diluted, dispersed and
washed away.
45. The algal bloom of 4 February 2009 was not caused by the Botnia plant.
46. The Botnia plant does not use nonylphenols in any form or for any purpose.
47. The Botnia plant has not harmed or affected aquatic or ganisms. In particular, it has not
affected clams or rotifers or fish, as claimed by Argentina.
48. The Botnia plant has not added any dioxins or furans to the waters of the Uruguay river.
49. Mr.President, on behalf of Uruguay , I respectfully submit that these are the only
conclusions the evidence that is before you ⎯ including and especially Argentina’s own
evidence ⎯ permits.
50. I thank you again for your time and patient atte ntion. Uruguay’s next speaker, with your
permission, Mr.President, will be Mr.NeilMcC ubbin. He will be speaking as a member of
Uruguay’s delegation, not as a witness, as you said this morning, in the same manner as
Dr.Colombo and Dr.Wheater spoke on behalf of Argentina last week. Mr.McCubbin is an
engineer, not a lawyer. He has worked on pulp and paper mills for 44 years, principally focused on
their environmental effects and how to improve th em. He was retained by Uruguay as a scientific
and technical expert and counsellor for the first time in 2009. He will provide Uruguay’s answers
to some of the technical questions raised by Judge Simma last Thursday (CR 2009/15). - 32 -
Thank you, Mr. President, and I ask, with your permission, if Mr. McCubbin may be called
to the podium.
The VICE-PRESIDENT, Acting President: Thank you, Mr. Reichler, for your presentation.
I give the floor to Mr. McCubbin. You have the floor, Sir.
Mr. McCUBBIN: Thank you, Mr. President.
T HE SUITABILITY OF THE SITE AND TECHNOLOGY OF THE MILL
1. Mr.President, Members of the Court, it is an honour to appear before you on behalf of
Uruguay. I intend to address the evidence on the following three points.
2. First, why the design and environmental performance of the Botnia mill complies with
best available techniques (BAT) as defined by the European Union, and why, by any standard, its
environmental performance is among the best in the world.
3. Second, why the Uruguay river at Fray Bentos is an excellent location for a
twenty-first century pulp mill of the design and size of the Botnia plant.
4. In this section, I will discuss why the millhas not had any adverse effect on the river’s
quality or its ecological balance. I will also show that the receiving environment is entirely capable
of accommodating any phosphorus emitted by this mill.
5. Third, I will address the issue of odour from the plant. I will describe the technology used
to minimize odours from the plant and explain why Argentina’s evidence of odour is not
convincing.
6. In this pleading, I will also answer Judge Simma’s questions regarding modern pulp mill
technology (CR 2009/15, pp. 67-68).
I.T HE DESIGN OF THE PLANT
7. First, let us discuss the design of the plat. The evidence demonstrates that the Botnia
plant is a superbly engineered mill. The record is replete with reasons why this is true, and I need - 33 -
76
not take the Court’s time to review them . The compte rendu that you will receive includes
extensive citations.
8. The record further demonstrates that Uruguay thoroughly evaluated the plant’s technology
77
before issuing any authorizations . Uruguay’s preliminary authorization required the plant to
comply with the best available techniques ⎯ commonly known as BAT ⎯ for environmental
protection in pulp manufacture, as defined by the European Union 78.
9. In addition to DINAMA’s review and its mandate that the mill comply with BAT, the
plant was required to meet the International Finance Corporation’s ⎯ or IFC’s ⎯ stringent
environmental standards, which incl ude technology performance standards 79. This was validated
by several independent technical firms with real -world experience in working with modern pulp
mills, who reported to the IFC 80. In particular, as a condition of its financing, the IFC required that
the plant be independently audited prior to comm issioning to verify that it used best available
techniques. AMEC, the engineering firm chosen fo r this audit, has vast experience in pulp mill
technology, including the requirements for environmental controls 81. The IFC charged AMEC
with providing “[i]ndependent verification that the mill has been constructed as described in the
82
EcoMetrix Cumulative Impact Study”, that is, “to meet EU BAT standards of performance” .
10. AMEC’s final report confirmed that the Bo tnia plant is consistent with the European
Union’s BAT standards in all respects. It c ould not have been clearer. After conducting a
comprehensive review and inspection of the mill, AMEC experts concluded: “[a]ll process
76
See, for example, CMU, paras.5.12-5.39, 5.54-5.55; RU, paras.6.31-6.49 EcoMetrix, Cumulative Impact
Study, Uruguay Pulp Mills (hereinafter “CIS”), Ann.A, Se p.2006. CMU, Vol.VIII, Anns.173, 174; Deardorff and
Pryke (Exponent, Inc.), “Available Technologies and Best Environmental Manage ment Practices for Botnia S.A.’s
Bleached Kraft Pulp Mill, Fray Bentos, Uruguay”, July 2007 (h ereinafter “Deardorff Report”); CMU, Vol. X, Ann. 215;
Exponent, Inc., “Response to th e Government of Argentina’s Reply, Fa cility Design Technolog y and Environmental
Issues Associated with the Orion Pulp Mill, Fray Bentos, Uruguay River, Uruguay”, July 2008, (hereinafter “Exponent
Report”); RU, Vol. IV, Ann. R83.
77CMU, paras. 4.117-4.133.
78The IPPC (Integrated Pollution Prevention and Control) Directive 96/61/EC lays down a framework requiring
Member States to issue operating perm its that contain conditions based on Best Available Techni ques (BAT). The
European IPPC Bureau (EIPPCB) organizes this exchan ge of information and produ ces BAT reference documents
(BREFs); CMU, paras.3.10, 4.34, 5.54; MVOTMA, Initial Environmental Authorisation for the Botnia Plant,
14 Feb. 2005, (hereinafter “AAP”); CMU, Vol. II, Ann. 21.
79CMU, paras. 5.38-5.48.
80Ibid.
81RU, paras.4.19-4.23; AMEC Forestry Industry Consu lting, Orion BKP Mill Pre-Startup Audit, Sep.2007,
(hereinafter, “AMEC Report”); RU, Vol. III, Ann. R48.
82
RU, para. 4.19. - 34 -
equipment and technology installed or planned to be installed at Botnia-Orion is similar or
equivalent to best available technology as describ ed in the CIS”. Botnia uses “[m]odern process
technologies” that “promise to perform with lo w emission and world-leading environmental
83
performance” . Argentina has presented no evidence from any independent engineer or scientist
with experience or qualifications in modern pul p mill technology or its environmental protection
technology to challenge this conclusion.
11. The actual performance of the Botnia mill demonstrates that it complies with BAT
standards by a comfortable margin. It performs be tter than modern mills in Europe, and performs
better than other recently-constructed mills around the world. Information about other mills is
spelled out in detail in the record 84. This graph, which is found at tab 8 in your folder, shows the
mill’s performance against BAT standards for phosphorus, the parameter that Argentina
emphasized most last week. Comparisons of performance for other parameters are set out in the
record 85. These show that Botnia’s actual performance in 2008 and 2009 86 is fully compliant with
BAT international standards ⎯ refer to tab9 of your folder. The same outstanding performance
can be seen when one compares Botnia’s 2008 and2009 performance against other advanced,
BAT-compliant mills, all of which are in Europe.
12. Last week, Argentina displayed a gra ph of phosphorous discharges in Finnish mills
compared to Botnia in 2008, when the mill operation was still in its start-up phase 87. Tab10 in
your folder shows a similar graph based on Botn ia’s performance reported in the most recent
six-month report issued by DINAMA. Botnia’s total discharge, annualized for 2009, is competitive
83RU, para. 4.22.
84See, for example, Exponent Report, op. cit, Attachment A; EcoMetrix, Inc., “Orion Pulp Mill, Uruguay-
Independent Performance Monitoring as Require d by the International Finance Corporation ⎯ Phase 3: Environmental
Performance Review, 2008 Monitoring Year ”, Mar.2009, (hereinafter, “Thi rd EcoMetrix Report”), Uruguay’s
Submission of New Documents, 30June 2009, Ann.S7; DINAMA Performance Report for the First Year of
Operations, May2009, Uruguay’s Submission of New Documents, 30June2009, Ann. S2, App.IV, p.30. See also
DINAMA Report on Botnia's EnvironmentalPerformance Nov. 2008-May 2009, 22 July 2009, (hereinafter “DINAMA
Six Month Report”), p.18, tables5 and 6, p.20, table9, p.25. Original Spanish version available via a link entitled
“Informe Emisiones Semest re Nov.2008-May2009” at http://www.mvotma.gub.uy/dinama/index.php?option=com
_docman&Itemid=312, (hereinafter, “DINAMA Six Month Report”); translation provided to the Court on
14 September 2009.
85Third EcoMetrix Report, op. cit.
86References to 2009 performance are based on data asreported in the DINAMA Six Month Report and have
been annualized to estimate full year 2009 emissions. (DINAMA Six Month Report, op. cit., p. 14, table 4.)
87Third EcoMetrix Report, op. cit., p. ES i. - 35 -
amongst this group, even though the Fray Bentos mill is larger than most Finnish mills. The actual
situation is very different from that portrayed by Professor Wheater. This demonstrates the greater
environmental efficiency of the modern technology in the Fray Bentos mill.
13. I will now pass on to Judge Simma’s questions. His first question began with the
statement:
“With regard to the emissions of chlorine into the waters of the River Uruguay,
the Court has been told that the Botnia mill uses elemental-chlorine-free (ECF)
technology, which is said to still produce significant quantities of persistent organic
pollutants, like dioxins and furans. [He goes on to say.] We have also been told that
modern mills are capable of eliminating production of those toxins by employing
totally-chlorine-free (TCF) technology.”
14. Before proceeding to Judge Simma’s question, I pause to note that the vast majority of
independent scientists have concl uded that modern ECF pulp mills do not discharge significant
quantities of persistent organic pollutants (POPs) , including dioxins and furans. This issue was
reviewed extensively in the CIS and elsewhere 88.
15. Judge Simma’s question asks:
“Which of the technologies just mentioned is being, or will be, used by Botnia
mills located in European Community Memb er States, particularly in Finland and
particularly by the most recently established mills or mills that are currently being
built or projected and emit their effluents into rivers?”
16. The response is that Uruguay has confir med with Botnia, and from publicly available
sources, that all of Botnia’s mills use ECF technology 89. There is no public report of any new TCF
mills planned or under construction anywhere in the world.
17. Tab11 in your folder shows that only about 5per cent of the world’s pulp is produced
90
using TCF technology. Further, its use is declining steadily .
18. Judge Simma’s last question about bleach ing technology asked if it is technically
possible to convert the Fray Bentos mill from the ECF production technology to TCF. The answer
is quite simple: yes. However, such a conversion would offer no me asurable environmental
88CMU, paras. 6.43-6.46; EcoMetrix CIS, op cit., p. 2.25; EcoMetrix CIS, Ann. A, op. cit., pp. A9.1-A9.19; see
also, scientific reviews by Darmstadt Technical University, “ECF and TCF Sulfatzellstoff⎯ ein Vergleich iherer
Umwelttbelastungen; Das Papier”, T22-T29, 2003; Jukka Tanna, Seppo Ruonala and Marja Ruoppa, “FE350
Environmental effects of efflue nts from ECF- and TCF-bleaching ⎯ project summary”, 1999, The Finnish
Environment350, Environmental Protection, p.60, http://www.ymparisto.fi/default.asp?contentid+84821&lan=EN; and
Klaus Niemela, “Effluents from bleached kraft pulp manufacture”, 2007, Espoo,land www.kcl.fi.
89
http://www.botnia.com/en/default.asp?path=204,208,234.
90http://www.aet.org/science_of_ecf/eco_risk/2008_pulp.html. - 36 -
benefits and has many environmental disadvantages, including a higher consumption of trees. The
TCF process reduces the recyclability of paper. TC F pulp is also lower in quality than ECF pulp,
and serves a different and more limited market 91.
19. The overwhelming scientific consensus is that ECF and TCF pulp reduction technologies
92
are equivalent in respect to dioxin and furan production . Both ECF and TCF are considered as
best available techniques for pulp manufacture by the European Union. In the mid-1990s, the
United States Environmental Protection Agency (EPA) considered regulations to require all United
93
States mills to convert to TCF technology. The Agency decided against such an action . None of
the other countries with extensive experience in regulating pulp mills requires TCF technology.
None, today. The Canadian province of British Columbia did pass a law requiring TCF conversion
of all mills in 1990, but it repealed it, in about 2002, after a study by experts retained by the
94
province showed there would be no environmental benefit . This study showed no environmental
benefit of TCF over ECF, over modern ECF.
20. Dioxins and furans are rarely found in EC F mill effluents. Many samples of effluents
95
from the Botnia mill have been analysed for dioxins and furans . On the single occasion when
dioxin was detected, the concentration was 0.21 picograms per litre. A picogram is a millionth of a
millionth of a gram. This coincided with the det ection of dioxins and furans in the river upstream
96
from the mill . EcoMetrix attributed the dioxin in the effluent to the incoming river water, not to
the mill 97.
91CMU, paras. 6.43-6.46.
92CMU, paras.6.43-6.46; see also, Scientific reviews by Darmstadt Technical University, “ECF and TCF
Sulfatzellstoffe ⎯ ein Vergleich iherer Umwelttbelastungen; Das Papier”, T22-T29, 2003; Jukka Tanna, Seppo Ruonala
and Marja Ruoppa, “FE350 Environmental effect s of effluents from ECF- and TCF-bleaching ⎯
project summary”, 1999, The Finnish Environm ent 350, Environmental Protection,6p0.,
http://www.ymparisto.fi/default.asp?contentid+84821&lan=EN; and Klaus Niemela, “Effluents from bleached kraft pulp
manufacture”, 2007, Espoo, Finland, www.kcl.fi.
93
Federal Register, Vol. 63, pp. 18,504-18,751, 15 Apr. 1998.
94
Reviewed Scientific Basis for AOX Effluent Standard in British Columbia, Carey, John, Hall, Eric, McCubbin,
Neil,http://www.llbc.leg.bc.ca/Public/PubDocs/bcdocs/352023/aoxpanelreport.p….
95
EcoMetrix, Inc., “Orion Pulp Mill, Uruguay-Independent Performance Monitoring as Required by the
International Finance Corporation ⎯ Phase 3: Environmenta l Performance Review, 2008 M onitoring Year, Mar.2009,
“Third EcoMetrix Report”, Uruguay’s Submission of New Documents, 30June 2009, Ann.S7; DINAMA Six Month
Report.
96Third EcoMetrix Report, op. cit., p. 3.7.
97
Ibid. - 37 -
21. Judge Simma’s second question, part (a) reads:
“From a technical and environmental viewpoint, would it be possible, and
would it make sense, to add facilities for tertiary treatment to the wastewater treatment
plant of the Botnia mill, or would the carbon emissions involved in the production of
the energy necessary for such tertiary treatment undo the advantages of adding this
third stage?”
22. It is technically possible to add a tertiary system to any plant. However, it would not
make environmental sense to do so at Botnia. Although tertiary treatment may allow a marginally
lower nutrient discharge, any environmental benefit would be offset by a significant increase in
energy consumption, an increase in carbon emissions, sludge generati on and chemical use 98. The
great majority of modern pulp mills do not use tertiary treatment because an advanced secondary
treatment system can achieve comparable or equal results. In addition, as Dr.Wheater stated last
week (CR2009/12), tertiary treatment systems consum e significant quantities of chemicals. It is
not necessary to be a chemical engineer to realize that chemicals that go in must come out. At
Botnia, a tertiary treatment system would gene rate a huge quantity of wet sludge. This sludge
contains a lot of water, which must be evaporat ed, consuming significant energy, before the dried
sludge can be landfilled or burnt. These and furt her negative aspects of tertiary treatment are
99 100
discussed in Uruguay’s Counter-Memorial and, separately, by EcoMetrix .
23. The performance of Botnia’s existing secondary system satisfies all prevailing regulatory
standards. Indeed, it even meets the standard urged by Argentina. As Dr.Wheater stated in his
101
expert report , a mill in a sensitive environment should ha ve a concentration of phosphorus in its
discharge of less than 1 mg per litre. I repeat, 1 mg per litre is Dr. Wheater’s criteria. The current
102
discharge concentration at Botnia is one third of that level . I am sure Dr.Wheater will be
pleased. Any further reductions in phosphorus by tertiary treatment will not translate into a
meaningful environmental benefit because the plant is not affecting nutrient levels in the Uruguay
river.
98
CMU, paras. 6.30-6.42; EcoMetrix CIS, op cit., p. A8.13-A8.15.
99
CMU, paras. 6.30-6.42.
10EcoMetrix CIS, op. cit., p. A8.13-A8.14.
10CMU, para.4.89; RA, para.3.175; Wheater & Mc Intyre, “Technical Commentary on the Counter-Memorial
of Uruguay in the Case Concerning Pulp Mills on the River Ur uguay”, p. 25, RA, Vol. III, Ann. 44. Argentina does not
have a promulgated discharge standard for phosphorus.
10DINAMA Six Month Report, op. cit., p. 14. - 38 -
24. To answer the second part of JudgeSimma’s question, Uruguay has received
confirmation from Botnia that none of its other mills employs tertiary treatment. This is not
surprising because tertiary treatment is rarely used for pulp mills 103. Only two of the 130kraft
mills in North America have tertiary treatment 104. No mill in Argentina employs tertiary
105 106
treatment . Nor does the most modern mill in Europe, Zellstoff Stendal, in Germany .
25. As Professor Boyle indicated yesterday (CR 2009/16), Botnia and Uruguay are engaged
in a project that will be much more effective at removing phosphorus from the river, without the
drawbacks of tertiary treatment. He referred to piping the sewage from Fray Bentos to the mill’s
effluent treatment plant in 2010 107. At the time of the CIS, it was calculated that so doing would
reduce the discharge of phosphorus by Botnia to one quarter its current amount, or better 108.
The VICE-PRESIDENT, Acting President: Mr.McCubbin, I consider that this may be a
good moment for a pause, and you will be allowed to continue after the coffee break.
Mr. McCUBBIN: Certainly.
The VICE-PRESIDENT, Acting President: The hearing is suspended for 15 minutes. Thank
you.
The Court adjourned from 11.15 to 11.30 a.m.
The VICE-PRESIDENT, Acting President: Please be seated. The hearing is resumed, and I
give the floor to Mr. McCubbin to continue. You have the floor, Sir.
Mr. McCUBBIN: Thank you, Mr. President.
103
Deardorff Report, op. cit., pp. 30-31.
104Ibid.
105RU, para. 6.32.
106Deardorff Report, op. cit., pp. 30-31.
107
RU, para.4.93. See also “Botnia Will Treat Effluents”, El Pais, 9May2009, Uruguay’s Submission of New
Documents, 30 June 2009, Ann. S20.
108
RU, para. 4.93. - 39 -
II. FRAY BENTOS IS A SUITABLE LOCATION
FOR A PULP MILL LIKE B OTNIA
26. I move this discussion to whether Fray Bentos is a suitable location for a pulp mill like
Botnia’s. I have just explained why this is an excellent mill, with exceptionally low discharges.
109
The record also contains ample evidence why Fray Bentos is an excellent site for such a mill . I
will focus my remarks on the flow in the river, which Argentina indicated last week was a crucial
criterion for determining whether effluents can be assimilated.
A. Flow reversal
27. First, I will deal with flow reversal. Last week, Argentina suggested that the reversal of
flows in the Uruguay river is a special and uni que hydrologic condition that renders the river
particularly vulnerable to effluents. Actually, reversal of flow is common as expected in most
110 111 112
major river systems. Examples include the Rhine , the Seine , the Thames , and the
Hudson 113. Reversals of flow in rivers can be observed hundreds of kilometres from the river’s
114
mouth . There are numerous pulp mills operating on rivers where flow reversals are common,
due to effects of wind and tide. Examples of bl eached kraft mills like Botnia include Georgia
Pacific at Brunswick, Georgia, in the United States ; Rayonier at Fernandina Beach in Florida in
the United States; Kruger at Trois Rivières in Qu ébec in Canada; Weyerhaeuser at New Bern in
North Carolina, United States; Irving in Saint John, New Brunswick, in Canada; and Weyerhauser
in Longview in the State of Washington in the Un ited States; Jari in the Amazon, Brazil. All
experience flow reversal.
28. Although flow reversals are relevant and do need to be considered, the magnitude of the
water flow in the river is a significant factor that differentiates one system from the next and is the
10CMU, paras. 5.56-5.77; RU, paras. 6.51-6.59.
11Oomkensi, E. and Terwindt, J.H.J., “Inshore estuarine sediments in the Haringvliet (Netherlands)”, Geologieen
Mijn Bouw, Vol. 39, 1960, pp. 701-710.
11Garnier J., Cebron A., Tallec G., Billen G., Sebilo M. and Martinez A. “Nitrogen behaviour and nitrous oxide
emission in the tidal Seine River estuary (France) asfluenced by human activitiesin the upstream watershed”,
Biogeochemistry, Vol. 77, 2006, pp. 305-326.
11“The tidal Thames: a guide to recreational users”, Port of London Authority, 2005,
http://www.pla.co.uk/pdfs/pp/recreational_users_guide.pdf.
11Weiss, L. A., Schaffranek, R. W., and de Vries, M. P., “Flow and chloride transport in the tidal Hudson River,
New York, in Hydraulic Engineering”, Proceedings of the American Society of Civil Engineers, Vol. 94 (No. 2), 1994,
pp. 1300-1305.
11Ibid. - 40 -
key hydrologic parameter used to judge a river’s cap acity to assimilate effluents and to carry them
away. Flow reversal, water passage and flushing can occur simultaneously, as Mr.Reichler
showed earlier. Indeed, this is the manner in whic h most major rivers behave as they approach the
sea. This is especially true for a river as deep as the Uruguay, as much as 20 m in Fray Bentos.
B. River flow rate
29. Although it was not apparent from Ar gentina’s presentation, the Uruguay river is
amongst the world’s largest.
30. Tab 12 in your folder shows the flows of rivers around the world. With an average flow
of 6,230 cubic metres per second 11, the Uruguay river is larger than any river in Western Europe.
If the Uruguay river was located in Europe it would be one of the most desirable locations for a
pulp mill. No river in Western Europe provides the level of dilution and assimilative capacity that
the Uruguay river does.
31. I mention average flows here to avoid drowning the Court in numbers. Of course, the
flow in all rivers varies widely. All have low-flow periods according to the season and the
weather. The Uruguay river is not unusual in this respect.
32. There are many environmentally safe mills on much smaller rivers than the Uruguay. To
use a European example, the 608,000 tons per year Zellstoff Stendal mill was commissioned on the
river Elbe a few years ago.
33. The photographs in this display, found at tab13 of your folder, shows the Stendal and
Botnia mill sites, both viewed from an altitude of 10 km. From the photographs, it is obvious that
the Elbe is much smaller than the Uruguay. In fact, the average flow of the Elbe is about
15 per cent of the Uruguay river’s flow.
34. The phosphorous discharges from the two mills are shown in the next graph, using
2007data for Stendal 116and 2009 for Botnia 11. This may be found at the left side of tab14 in
your folder. The mass of phosphorus tons per year discharged by Botnia is only a little larger than
that of the Stendal mill. The difference, of course, reflects Botnia’s larger manufacturing capacity.
115
EcoMetrix CIS, op. cit., p. D3.2.
116
Exponent Report, op cit., Attachment A, A-14.
11DINAMA Six Month Report, p. 18, table 5. - 41 -
35. Now, I will direct your attention to the same graph expressing phosphorus discharged per
litre of water in the river. This is on the right si de of the same slide, recalling that the Elbe is far
smaller than the Uruguay river. You will see that once we normalize the load to the river flow, the
relative load of phosphorus from Botnia is significantly lower than that from the Stendal mill. This
is because the phosphorus from Botnia is assimilate d into a volume which is many times greater
118
than that afforded by the Elbe. A number of other examples may be found in the record .
C. Ecological balance of the river
36. Let us move on now to the ecological balan ce in the river. A very good plant and a very
large river make an excellent combination. Whethe r we use the predictions of the CIS, or the data
presented by Argentina, or the mill’s actual performance, the conclusion is the same: phosphorus
produced by this mill discharged to this river will not result in changes in water quality or
otherwise change the ecological balance. Here is why.
37. The Uruguay river, as you have already heard, carries high amounts of phosphorus.
Phosphorus comes from natural, industrial, agricu ltural and sanitary sources that exist and have
existed for many years, in Brazil, Argentina and Uruguay.
38. Using the average flow and concen tration of the river, roughly 19,000tons ⎯
19,000 tons ⎯ of phosphorus flow down from far upriver , past FrayBentos and Gualeguaychú
every year, excluding any contribution from the mill 119. Whether we use the CIS value or the
actual 2008 or the actual 2009 results for phosphorous discharge, simple mathematics show that for
every ton of phosphorus discharged to the river fro m the mill, more than 1,000 tons of phosphorus
originated from some other location, including, of course, very significant contributions from
Argentina. In that environment, the phosphorus from the mill was simply not detectable in 2008 in
the river and cannot be responsible for any cha nges in the environment. So far in 2009 the
phosphorous discharges are even lower. A chart showing Botnia’s discharge of phosphorus, and
the phosphorus in the Uruguay river as a whole, is shown in tab 15 of your folder. The graph does
not show the phosphorous discharge from the Gualeguaychú river to the Ñandubaysal Bay; but
118
Exponent Report, op cit., Attachment A, p. A-13. RU, Vol. IV, Ann. R83.
11Assuming an average flow of 6,230m 3/s and average phosphorous concentration in river of 0.097mg/l,
EcoMetrix CIS, op. cit., pp. D3.2, D3.19. - 42 -
that discharge alone is more than 25times Botnia’s ⎯ 25times larger 12. The data for the other
nutrient, considered important by Dr. Wheater, namely, nitrogen, tell the same story.
39. The absence of measurable effect on water quality, or on the overall ecological balance is
evident in the data. ProfessorBoyle summarized Uruguay’s evidence yesterday. Earlier today,
Mr. Reichler showed why Argentina’s data lead to the same conclusion.
40. This does not mean the nutrient levels never change. As is evident in both Parties’ data,
any large system like the Uruguay river experiences substantial natural and seasonal year-to-year
variations. This natural variability creates hardin ess in the system because natural perturbation is
the norm 121. The plants and animals that live in the system are those which are adapted to natural
perturbation of the magnitude that occurs in the river. River Uruguay is a robust ecosystem.
41. In any event, conditions in the river near the mill remain as they were prior to
commencement of operations. Of course they show the normal seasonal variability, but there is no
evidence that nutrients are building up or setting the stage for algal blooms. You have already seen
Mr.Reichler’s presentation of what Argentina’s data actually say about the lack of nutrient
accumulation. This is hardly surprising, because the phosphorous load to the river from the mill is
simply too small to make a difference in the overall phosphorous flow down the Uruguay. In short,
the phosphorous discharged from the mill, is much less than one part in every thousand in the river.
It has no effects on water quality, and thus no effects ⎯ no effects at all ⎯ on increased plant
growth or eutrophication over and above the natural le vels in the river. Continued monitoring will
enable the Parties to verify that this remains so into the future. In light of the efforts by Uruguay to
reduce phosphorous effects to the river, including by the connection of the Fray Bentos sewer to
the mill effluent treatment system , there is every reason to expe ct that discharges of phosphorus
will decline in the future.
12See RU, para. 6.27.
12Parsons, P., “Environmen ts and evolution: interac tions between stress, resource inadequacy and energetic
efficiency, Biological Reviews, Vol.80, 2005, pp.589-610; Dickinson, G., and Murphy, K.J., Ecosystems, 2007,
Routledge, New York; Parsons, P., Animal Physiology: Adaptation and Environment , 2005, Cambridge University
Press; Selander, R. K., a nd Kaufman, D.W., “Genic variability a nd strategies of adaptation in animals”, Proc Nat Acad
Sci., Vol. 70, 1973, pp. 1875-1877. - 43 -
III. O DOUR
42. Mr. President, I will now address the evid ence on air emissions. Last week Argentina
focused on odour, so I will do the same.
43. Even the highest levels of alleged air pollution claimed by Argentina are 5,000 times ⎯
5,000 times ⎯ lower than the concentration the World Health Organization says could cause
impacts on health 12.
44. Judge Simma asked: “Do technologies exist which would minimize the alleged
malodorous emissions (caused by sulphur) of the Botnia plant?”
45. The short answer is that no better technol ogy exists, but that over time the performance
of existing operations could, in theory, be improved through additional training and preparedness.
46. As described in the CIS 123, gases from the mill systems that contain the malodorous TRS
gases are collected and incinerated. This is the only effective means of destroying the gases. It is
environmentally sound also, because the heat is reco vered, and the sulphur is recuperated and used
in the manufacturing process.
47. Under ordinary circumstances, there will be no odour emissions from the plant 12. None.
However, no complex mechanical system can be perfect, so malodorous gases occasionally escape.
This is not only true of the Botnia plant, it is true of every facility that has air pollution control
equipment. To minimize the frequency of such in cidents, Botnia has a complete back-up system,
125
which is unusual. Most mills have only partial back-up .
48. I will now address the evidence on odour that was presented in Argentina’s scientific
report.
49. Argentina installed monitoring equipment at various locations. Whenever the equipment
registered a concentration of gas that was hi gher than the detection threshold, Argentina
automatically assumed the fault was Botnia. One need not have scientific training to appreciate
122
Air Quality Guidelines, World Health Organization, Copenhagen, 2000, Chap. 6.6.
12EcoMetrix CIS, op. cit. , pp.A8.48–A8.55. See also Ines Camioni, University of Buenos Aires (UBA),
“Analysis of the Environmental Impact on the Air Component by the Pulp Plant at Fray Bentos, Uruguay in the Area of
Gualeguaychú”, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S3, p. 28.
12EcoMetrix CIS, op. cit., p. ES. xvi (“Odour will not be detectable during normal mill operations”).
12EcoMetrix CIS, op. cit., p. A8.55 (“Significantly beyond BAT requirements”). - 44 -
that, at the very least, other possible sources must be considered. And there are at least two very
obvious odour sources in Argentina.
50. First, it is well known that wetlands in warm weather, like the Argentine summer,
generate hydrogen sulphi de, frequently known as H 2S, particularly when sulphur or sulphate are
present in the water and mud. These sources are show n diagrammatically in tab 16 of your folder.
The shallow wetland and marsh areas on the Argentin e side of the river, such as Ñandubaysal Bay
and the Ines Lagoon adjacent to International Bridge , release sulphurous gases that are chemically
very similar to malodorous gas that Argentina a ttributes to Botnia. These areas are concentrated
near where many of the Argentine odour compla ints originated. The 30June2009 Argentine
Scientific Report stated the water at sample point N6, a location in the Bay
“is more sulphurized as compared to the Uruguay river water. The greater
mineralization of the water... reflects the influence of the Gualeguaych ứ river
discharge. The intensified evaporation of th e water in this very shallow sector, with
126
little circulation . . . may only increase this difference.”
In other words, wetlands and swamps near Arge ntina can produce “rotten egg” odours. These are
127
often referred to as “swamp gases” .
51. For another source of malodorous gases Arge ntina need look no further than its own
domestic sewers. It will come as no surprise to the Court that municipal sewers are perfectly
capable of releasing foul-smelling gases. It cer tainly should have come as no surprise to
128
Argentina’s scientific team, even the press reported bad smells from sewers .
52. Despite these two obvious local sources of gases, Argentina’s Scientific Report gave
them no consideration at all. Instead, every occasion when its monitoring equipment detected
odour, it was attributed to Botnia. But you cannot just make that assumption. Argentina has not
shown that those exceedances of the odour threshold were caused by Botnia. Argentina has
presented no evidence to show these exceedances of odour thresholds were caused by Botnia.
12Argentine Scientific and Technical Report, Chap. 3, Sec. 4.2.1.
12United States EPA Program to improve environmental literacy,
http://www.epa.gov/region1/students/pdfs/wetch1.pdf; United States Army Corps of Engineers, 1987, Corps of
Engineers Wetlands Delineation Manual , Wetlands Research Program Techni cal Report Y-87-1 (on-line edition);
John Teal and Mildred Teal, Life and Death of the Salt Marsh, Boston, Little, Brown, 1969.
12“Gases emission detected in condensate pump: Odour episode at Botnia reached Gualeguaychú”, La
República, 27 Jan. 2009, New Documents Submitted by Argentina, 30 June 2009. - 45 -
53. To be sure, there have been isolated odour incidents at Botnia, which DINAMA has
investigated and addressed to the satisfaction of the IFC and its technical experts, who found that
there were only six odour incidents attributable to Botnia in all of 2008 129.
54. However, Argentina has no proof at all that the air in Argentina has suffered an increased
number, or frequency, of occasions when the odour detection threshold has been exceeded since the
Botnia mill began to operate. This is becau se Argentina collected only a trivial amount of
pre-operational data on air quality. In total, Argentina collected a few days of samples during
130
September, before the plant began to operate in 2007 . In light of Argentina’s insistence last
week that no environmental study is valid without pre-operational data, no valid comparison can be
made by Argentina of air quality before or af ter operation. There are numerous other serious
problems with testing methodology and test conclu sions, but I believe I have said enough on the
topic for now.
55. Mr.President, Members of the Court, I hope it is now clear that, contrary to what
Argentina suggested last week, the Botnia mill is a superb facility. It employs outstanding
pollution control technology, its location is perfec tly appropriate, given the size and characteristics
of the river. The Court may be absolutely confid ent that the Botnia plant could just as easily have
been permitted in the European Union or any other jurisdiction with stringent environmental
protection laws. Mr. President, Members of the Court, thank you for your attention. I now invite
you to give the floor to Professor McCaffrey.
The VICE-PRESIDENT, Acting President: I th ank Mr. McCubbin for his presentation, and
I now invite Professor McCaffrey to address the Court. You have the floor, Sir.
Mr.McCAFFREY: Thank you very much, Mr. President. Mr.President, Members of the
Court, it is an honour and a privilege to appear before you today on behalf of the Eastern Republic
of Uruguay.
12Third EcoMetrix Report, op. cit., p.6.3. See also DINAMA Resolution after Botnia Odour Incident on
26January2009, 23Mar.2009, Uruguay’s Comments on New Documents Submitted by Argentina, 15July2009,
Ann. C6.
13Argentine Scientific and Technical Report, Chap. 2, Sec. 2.2, p. 28. - 46 -
SUSTAINABLE DEVELOPMENT
I. INTRODUCTION
1. Mr.President, this case is undeniably about a river ⎯ one of the great rivers of South
America. However, it could equally be said that it is a case about a promise ⎯ a promise by the
international community that the developing co untries of the world will be supported in their
efforts to improve the living conditions of their populations if they do so in a way that is consistent
with the protection of the environment. The essenc e of that promise is captured in the concept of
sustainable development.
2. My task today is to show that Uruguay is keeping her end of the bargain. She is doing this
because she has put in place process es that ensure the integration of environmental protection and
economic development. As a result, the Botn ia plant may be said to be a good example of
sustainable development. This has been recognized by the international community in the form of
the support for the plant that has been provided by an arm of its pre-eminent financial institution,
the World Bank. Because of this, the Botnia plan t is consistent, not only with the object and
purpose of the 1975 Statute ⎯ which the parties agree must be interpreted in accordance with the
131
principle of sustainable development ⎯ but also international best practice. Thus I am sorry to
say that my friend ProfessorBoisson de Chazourn es was simply wrong to say last week that the
132
Botnia plant represents development without respect for the environment .
3. Mr. President, today I will first recall the Pa rties’ recognition that the ultimate aim of the
1975Statute, including both its procedural a nd substantive provisions, is the sustainable
development of the Uruguay river. Second, I w ill briefly review the meaning of the expression
“sustainable development”. Third and finally, I will show how Uruguay’s rigorous environmental
assessment process, and the operation of the Botnia plant itself, are consistent with the paradigm of
sustainable development.
131
Uruguay established in her Counter-Memorial, and Argntina accepted in her Repl y, that the object and
purpose of the 1975 Statute is the sustainable development of the Uruguay river, CMU, para. 2.29.
13CR 2009/14 p. 31 para. 19. - 47 -
II.T HE GOAL OF THE 1975 S TATUTE IS SUSTAINABLE DEVELOPMENT
4. Mr. President, Uruguay and Argentina agree that the goal of the 1975 Statute ⎯ including
both its procedural and its substantive provisions ⎯ is the sustainable development of the Uruguay
river133. In her Reply, Argentina stated that she “i s in complete agreement with Uruguay” on this
134
point . Indeed she would have to be, since the Statute, without using the expression ⎯ which
was not coined until later ⎯ seeks to achieve precisely the objective sought by sustainable
development: an equilibrium between the parti es’ rights and needs to use the river for economic
and commercial development activities on the one hand, and the need to protect it from the
135
environmental harm that may be caused by such activities, on the other . In Article 1 the parties
agree to adopt the Statute “in order to est ablish the joint machinery necessary for the optimum and
rational utilization of the River Uruguay...” 136. The objective of “optimal and rational
utilization” may be taken as equivalent to that of equitable and reasonable utilization. In making
the achievement of this objective the overall object and purpose of the Statute, the parties
effectively expressed their commitment to sustaina ble development. Indeed, the entire Statute
reflects the kind of balance between economic deve lopment and environmental protection that is
the essence of sustainable development. Therefore, the meaning and content of sustainable
development is important to unders tand for proper interpretation of the 1975Statute, and it is to
that topic that I now turn.
III.T HE MEANING OF “SUSTAINABLE DEVELOPMENT ”
5. Mr.President, Members of the Court, perhaps the best known explication of the concept
of sustainable development is provided by the 1987 Report of the World Commission on
Environment and Development, or Brundtland Commission. According to the Commission,
“Sustainable development is development th at meets the needs of the present without
13CMU, paras. 1.26 and 2.29; AR, para. 1.48.
134
RA, para. 1.48.
13See CMU, para. 1.26.
13Statute of the River Uruguay, Art. 1; emphasis added. - 48 -
137
compromising the ability of future generations to meet their own needs.” The Commission went
on to observe that sustainable development
“contains within it two key concepts:
⎯ the concept of ‘needs’, in particular th e essential needs of the world’s poor, to
which overriding priority should be given; and
⎯ the idea of limitations imposed by the stat e of technology and social organization
on the environment’s ability to meet present and future needs” 138.
In approving the construction of the Botnia plant, Uruguay had in mind precisely these two
concepts: the need to improve the standard of living of present and futu re generations of its
population; and the importance of doing so in a way that is compatible with the limitations on the
environment’s ability to meet those needs.
6. The concept of sustainable development wa s further elaborated in the Rio Declaration,
adopted at the United Nations Conference on the Hu man Environment in 1992. Principle 4 of the
139
Rio Declaration, cited approvingly by both Parties , states: “In order to achieve sustainable
development, environmental protection shall constitute an integral part of the development process
and cannot be considered in isolation from it.” 140 This Court has also recognized the need to
integrate economic development and environmental protection. In the Gabčíkovo case, for
example, the Court stated: “This need to rec oncile economic development with protection of the
environment is aptly expressed in the concept of sustainable development” ( Gabčíkovo-Nagymaros
Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997 , p.78, para.140). And in your 2006
provisional measures Order in this very case, you recognized that the case “highlights the
importance of the need to ensure environmental protection of shared natural resources while
allowing for sustainable economic development”( Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Provisonal Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 80).
7. Similarly, in the recent Iron Rhine arbitration, decided in 2005, the tribunal stated as
follows:
137
World Commission on Environment and Development, Our Common Future, p.43 (Oxford University Press,
1987).
138
Ibid.
13CMU, para. 2.29, n. 71; RA, para. 1.48.
14Rio Declaration on Environment and Development, Principle 4, UN doc. A/CONF.151/26, 31 ILM 874 (1992). - 49 -
“Environmental law and the law on development stand not as alternatives but as
mutually reinforcing, integral concepts, which require that where development may
cause significant harm to the environment th ere is a duty to prevent, or at least
141
mitigate, such harm . . .”
8. The concept of sustainability also plays a prominent role in international water law.
Article5 of the 1997United Nations Convention on International Watercourses reflects the basic
principle of equitable and reasonable utilization. After stating that obligation, Article 5 continues:
“In particular, an international wate rcourse shall be used and developed by
watercourse States with a view to attaining optimal and sustainable utilization thereof
and benefits therefrom, taking into account the interests of the watercourse States
concerned, consistent with adequate protection of the watercourse.” 142
Clearly the General Assembly in adopting this provision ⎯ which is based on a draft prepared by
the International Law Commission ⎯ contemplated the use and de velopment of international
watercourses in a manner that is sustainable.
9. While the precise legal status of the concept has been debated 143, there is no doubt that at
least since the Rio conference in 1992 sustaina ble development has served as the international
community’s overarching standard for guiding and assessing efforts to improve living conditions
and to develop economically more generally. Mo re to the point for the present case, sustainable
development is given legal status precisely by the agreement of the Parties that it is the object and
purpose of the 1975 Statute and should therefore be used in the interpretation of its provisions.
10. Mr. President, there is also no doubt about the right of Uruguay to develop her resources,
and in particular her water resources, in a sust ainable way. Common Article 1 of the 1966 Human
Rights Covenants recognizes the right of all peoples to “freely pursue their economic, social and
cultural development”, and “to freely dispose of their natural wealth and resources” in accordance
144
with international law . With regard to the Uruguay river in particular, Article27 of the
141Iron Rhine arbitration (Belgium/Net herlands), Award of 24May2005, available at http://www.pca-
cpa.org/showpage.asp?pag_id=1155.
142Convention on the Law of the Non-navigational Uses of International Watercourses, Art. 5 (1), United Nations
doc. A/RES/51/869, 21 May 1997, 36 ILM 700 (1997).
143
See generally Alan Boyle and David Freestone, eds., International Law and Sustainable Development (Oxford
University Press 1999).
144
International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, Art.1(1) and (2), United
Nations General Assemb ly resolution2200 (XXI), 21 United Nations, Official Records of the General Assembly,
Forty-ninth session, Supplement No.16 , United Nations doc.A/6316 (1967), 6 ILM 360 (1967); International Covenant
on Civil and Political Rights, 16 Dec. 1966, Art. 1 (1) and (2 ), United Nations General Assembly resolution 2200 (XXI),
21 United Nations, Official Records of the General Assembly , Fifty-second Session, Supplement No. 16, United
Nations doc. A/6316 (1967), 6 ILM 368 (1967). - 50 -
1975Statute confirms “[t]he right of each Party to use the waters of the river, within its
jurisdiction, for domestic, sanitary, industrial an d agricultural purposes...”. Reflecting the
balanced approach of the Statute, Article 27make s the exercise of this right subject to “the
procedure laid down in articles 7 to 12 when the use is liable to affect the régime of the river or the
quality of its waters”. More generally, the ri ght of all States to pursue sustainable economic
development is confirmed in Principle2 of th e Rio Declaration, whose approach manifests a
similar balance. According to that Principle: “S tates have... the sovereign right to exploit their
145
own resources pursuant to their own environmental and developmental policies . . .” Principle 2
then goes on to reflect the correlative “responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction” 146. Principle2 and its predecessor, Principle21 of the
147
1972Stockholm Declaration, are generally rega rded as reflecting customary international law .
The Court has echoed the second limb of the Principle in its Advisory Opinion on Nuclear
Weapons, in a passage it later quoted in the Gabčíkovo Judgment (Gabčíkovo-Nagymaros Project
(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 41, para. 53):
“The existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas
beyond national control is now part of the co rpus of international law relating to the
environment.” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996 (I), pp. 241-242, para. 29.)
11. Again, this “general obligation” may be said to have been given specific content in
relation to the Uruguay river by the 1975 Statute, wh ich balances the right of each party to use the
river for industrial and other purposes against ob ligations relating to the protection of its
148
ecology .
145
Rio Declaration, op cit., Principle 2.
146Ibid.
147See Louis B. Sohn, “The Stockholm Decl aration on the Human Environment”, 14 Harvard International Law
Journal423, pp.491-493 (1973); and United Nations Gene ral Assembly resolution2996 (XXVII) (1972), adopted
without opposition, stating that Principles21 and 22 of the Stockholm Declaration “lay down the basic rules governing
this matter”.
1481975 Statute, Arts. 27-29 and, e.g., pp. 35-42. - 51 -
IV. B OTH U RUGUAY ’S RIGOROUS ASSESSMENT PROCESS LEADING TO THE B OTNIA PLANT ’S
APPROVAL AND THE ACTUAL OPERATION OF THE PLANT EXEMPLIFY
SUSTAINABLE DEVELOPMENT
12. Mr. President, Members of the Court, it remain s for me to review some of the features of
Uruguay’s rigorous assessment process leading to the Botnia plant’s approval, and the actual
operation of the plant itself, that exemplify sustainable development.
13. Mr.President, as demonstrated in Uruguay’s written pleadings 149and as my learned
colleague Professor Boyle will explain in some detail tomorrow, Uruguay’s environmental impact
assessment and permitting processes are fully consis tent with the 1975Statute and international
law. Uruguayan law requires the rigorous assessment of potential environmental impacts. The
independent experts of the Interna tional Finance Corporation, or IFC ⎯ the private financing arm
of the World Bank ⎯ concluded after analysing Uruguay’s environmental protection régime that
150
“the permit setting process used by DINAMA is practical and rigorous” .
14. Indeed, DINAMA’s review process, which is described in detail in the
151
Counter-Memorial , is demanding, careful and stringent. For example, when Botnia submitted its
initial EIA (environmental impact assessment) on 31 March 2004 as part of the permitting process,
DINAMA reviewed it scrupulously and, over the course of six months ⎯ between July and
152
December of that year ⎯ issued no fewer than five written requests for additional information .
Botnia’s responses to these requests, between Se ptember2004 and January2005, resulted in
considerable augmentation of th e 31March2004 EIA. Again, I offer this as one example to
illustrate how seriously Uruguay takes the protection of the environment.
15. Mr.President, this careful and demanding decision-making process is one of the
hallmarks of economic deve lopment that is environmentally sustainable. There was no rush to
judgment here, with regard to Botnia’s pr oposed plant. There was instead a careful,
methodological assessment of the proposal, as requi red by Uruguay’s environmental laws. As I
149
For example, CMU, paras. 4.107-4.144.
150
International Finance Corporation, Cumulative Impact Study, Uruguay Pulp Mills, p.A6.7, Sep.2006, CMU,
Vol. VIII, Ann. 174.
15CMU, paras. 4.108-4.116.
15Ibid., para. 4.126. - 52 -
have already mentioned and as ProfessorBoyle will explain further tomorrow, Uruguay’s
requirements on this subject are fully consistent with both the 1975 Statute and international law.
16. Mr. President, I now pass from Uruguay’s careful and meticulous review process to the
thorough assessments conducted by outside, inde pendent experts that confirmed Uruguay’s
conclusions regarding the environmental impacts of the Botnia plant. On 21November2006, the
IFC and the Multilateral Investment Guarantee Agency, or MIGA, approved an investment by the
IFC and a guarantee from MIGA for Botnia’s Orion pulp mill project in Uruguay. A document
posted on the IFC’s website states that “[t]he two organizations, after completing a thorough
review of the facts, are convinced that the m ill will generate significan t economic benefits for
153
Uruguay and cause no environmental harm” . The Court will recall that these are the twin
components of sustainable development: generati on of significant economic benefits in a way that
avoids harm to the environment.
17. The “thorough review of the facts” mentioned by the IFC was conducted by independent
experts commissioned by the organizations to ensure that the proposed Botnia mill would meet
their stringent environmental and social standards. The IFC explains:
“The decision to proceed was based on an extensive due diligence process,
which included the conclusive and positive findings of a cumulative impact study and
a subsequent review of the study undert aken by independent experts... The
conclusions of the study and the experts’ report confirm that the mill will comply with
IFC and MIGA’s environmental and social policies wh154 generating significant
economic benefits for the Uruguayan economy.”
A later, pre-start-up audit of the mill by inde pendent experts commissioned by the IFC concluded
that the plant uses “[m]odern process technologies” th at “promise to perform with low emission
and world-leading environmental performance” 15.
18. The mill commenced operation on 10Nove mber2007. Thus we now have over
one-and-a-half year’s experience with the plant’ s operation to use as a basis for determining
whether these predictions were accurate. Mr. President, the short answer is an emphatic “yes” ⎯
they were.
153
See http://www.ifc.org/ifcext/lac.nsf/Content/Uruguay_Pulp_Mills; emphasis added; RU, Vol.I, Chap.4,
p. 202, para. 4.5.
154
Ibid.
15AMEC Forestry Industry Consulting, Orion BKP Mill Pre-StartuAudit, pp.5-6, Nov.2007, RU, Vol.III,
Ann. R50. - 53 -
19. In a follow-up study commissioned by the IFC based on the plant’s first six months of
operation, the technical experts found that “the water quality characteris tics of the RioUruguay
have not changed as a result of the discharge of mill effluent” into the river 156. These findings are
confirmed in the more recent study commissioned by the IFC, on the plant’s first year of operation,
of March, 2009 157. That report concludes that
“all indications are that the mill is performing to the high environmental standards
predicted in the EIA [the environmental and social impact assessment prepared by
Botnia] and CIS [the Cumulative Impact Study commissioned by the IFC], and [is
performing] in compliance with Uruguayan and IFC standards. These results are also
158
consistent with the performance measures for other modern mills” .
The report also states: “A comparison of the m onitoring data pre- and post-commissioning of the
159
mill shows that the water quality of the Rio Uruguay has not changed as a result of the mill .”
This finding is corroborated by one comparing c onditions above and below the mill: “the water
quality between the mill and Fray Bentos [that is, downstream of the mill] is comparable to the
water quality further upstream beyond th e influence of the mill , indicating that the mill has not
affected water quality within the Rio Uruguay” 16. Mr.President, it bears emphasis that this
finding, by independent technical experts, c onfirming the prediction of DINAMA, is quite
exceptional: a pulp mill, operating close to its d esign capacity of one million air dried tonnes of
pulp per year 161, and contributing significantly to the Uruguayan economy 162, “has not affected
water quality within the Rio Uruguay”. Mr.Preside nt, if this does not fit the definitions of
sustainable development and equitable utilization, it is hard to imagine what would.
156IFC, Orion Pulp Mill, Uruguay Independent Performan ce Monitoring As Required by the International
Finance Corporation (Phase 2: Six-Mont h Environmental Performance Review) , p.4.3, July 2008; RU, Vol.IV,
Ann. R98.
157EcoMetrix, Inc., Orion Pulp Mill, Uruguay ⎯ Independent Performance Monitoring as Required by the
International Finance Corporation ⎯ Phase 3: Environmental Performance Review, 2008 Monitoring Year, Mar. 2009,
(hereafter EcoMetrix Third Report). Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
158Ibid., p. ES.ii.
159Ibid., p. ES.iii; emphasis added.
160
Ibid.; emphasis added.
161
EcoMetrix Third Report, p. ES.ii.
162See, for example, “Gracias a Botnia crece la industriauruguaya”, La Nación, 18Sep. 2009, available
at http://www.lanacion.com.ar/nota.asp?nota_id=988143(stating that the Uruguyan manufacturing industry
grew 9.6 per cent in 2007 due to the operation ofthe Botnia mill in the last two months of the year). - 54 -
20. The “Scientific and Technical Report” submitted by Argentina after the close of written
pleadings expresses worries about what might happen in the future as a result of the Botnia plant’s
operation. Specifically, the Report states: “The ma in outcome of this study is the detection of
changes associated to the pulp m ill activities that could act as an early warning framework to
anticipate future major and more irreversible ecosystem damages.” 163 This conclusion calls for
several comments.
21. First, the report as a whole was, of course, commissioned by the Argentine Government
and carried out by Argentine scientists under contract to their Government; it does not constitute
an independent, third-party analysis of the effects of the Botnia plant. Second, the report does not
dispute the favourable conclusions of the third EcoMetrix report, which was prepared by an
independent third party with the relevant technical expertise. Third, it is not entirely clear what the
possible effects mentioned in the Arge ntine report are attributable to ⎯ whether natural
phenomena, the numerous Argentine industrial plants affecting the river, the intensive agriculture
draining into the river from the Argentine side, th e Botnia plant itself, or some combination of
these factors. Fourth, and perhaps most revealing, the best case the Argentine report can make is
not that the plant is harming the ecosystem or violating any applicable CARU or Uruguayan
standards, or even any standards at all, but that there might be problems at some undefined point in
the future ⎯ problems which, again, do not violate any applicable standard or regulation, including
those of the international financial institutions supporting the project. As my colleague
Mr.Reichler showed yesterday (CR 2009/16) a nd today, the Argentine report finds no present
164
harm that would violate the Statute or CARU standards, and no imminent harm that would do so .
Instead, the report speculates on what “c ould” eventuate in the future. It is true that at last week’s
hearings Argentina alleged that the plant was causing harm presently. But as my colleagues
Professor Boyle, Mr. Reichler and Mr. McCubbin have shown, these claims are entirely
unsupported by the evidence ⎯ and in fact, Argentina’s own evidence proves the contrary.
163
New Documents Submitted by Argentina, Vol.I, Scien tific and Technical Report, 30June2009, Executive
Summary, second page (unnumbered); emphasis in original.
16See ibid., Executive Summary, and in particular, Chap.3, ne ither of which point to any present or imminent
harm that would violate the Statute or CARU standards. - 55 -
22. Mr. President, if such speculation is allowed to stop the functioning of plants like the one
involved in this case, the principle of equita ble and reasonable utilization will be rendered
meaningless and the promise of sustainable deve lopment will become a mirage, a cruel hoax.
Indeed, no investor would dare to commit funds to such a project if the Sword of Damocles of
possible effects in some remote and undefined future hung over it.
23. Yet there is no need for such a scenario to ensue, because the Parties have established a
robust mechanism for dealing with just this sort of situation: CARU. It is for that mechanism to
determine whether its standards are adequate, and if not, to amend them so that they are.
Moreover, the Court should not permit Argentina, by invoking speculative future developments, to
bypass a system to which she has agreed and which is fully equipped to make any necessary
adjustments to water quality standards in the fu ture. Not only has Argentina agreed to these
standards, she has also never indicated to eith er CARU or Uruguay that the standards are not
sufficiently strict, nor has she proposed any modifications to them. For her part, Uruguay has
never resisted changes to the standards. If, for th e sake of argument, the Botnia plant were to have
the kinds of effects over the long term that the Argentine report refers to, there is nothing to
indicate that CARU is not fully capable of dealing with them, and competent to do so, by means of
adopting more stringent water quality regulations.
24. Perhaps Argentina’s case would be more sympathetic if CARU’s standards were very
low ⎯ thus suggesting that it would permit development that was not in fact sustainable. (Of
course, Argentina herself would share the respons ibility for such low standards.) But CARU’s
standards can hardly be said to be low. Acco rding to the IFC’s independent experts, CARU’s
water quality standards are among the most advan ced in the world, comparing favourably with
those of such respected organizations as the European Union and the World Health
165
Organization . Indeed, Argentina does not suggest othe rwise. Therefore, Argentina’s argument
amounts to an assertion that CARU should have adopted standards that are higher than those of
such model organizations as the European Union and the WHO. Not only would this make a
mockery of the entire idea of sustainable devel opment and the companion principle of equitable
16International Finance Corporation, Cumulative ImpacStudy, Uruguay Pulp Mills, Ann.D, pp.D2.5,
D2.9-D2.10, Sep. 2006, CMU, Vol. VIII, Ann. 176. - 56 -
utilization, it also reflects poorly on Argentina hers elf since she participated in the formulation and
adoption of the CARU standards.
25. Finally with regard to CARU’s monitori ng of the plants in particular, a 2004 year-end
report by the Argentine Foreign Ministry to the Chamber of Deputies points out that “[c]ontrols on
both plants will be more extensive than those our own country has on its plants on the Paraná
166
River, which were nevertheless accepted by Uruguay” . This confirms again Uruguay’s
determination to develop its economy in a way that is sustainable and entirely consistent with the
1975 Statute.
26. Mr.President, in contrast with the allegations of possible future harm from the Botnia
plant in Argentina’s Scientific and Technical Re port, we heard repeatedly last week about how
Uruguay’s efforts to develop sustainably are affecting Argentina’s tourism industry presently,
specifically in Gualeguaychú 167. Yet Argentina has been unable to present any actual evidence that
tourism has declined. In fact, if anything, it would seem to have increased.
27. Since the plant’s operation began in November2007, Gualeguaychú has experienced
record numbers of tourists. This year’s annual carnival in Gualeguaychú was reported to have been
168
the “second largest in Carnival history” . The event was attended by 180,000visitors from all
over the world, and raised an amount reportedly equal to Gualeguaychú’s entire municipal
169
budget . [Slide.] In fact, Argentine newspapers reported that the level of attendance “this
past January [was] the best in Carnival’s history” 170. Is this surge in tourism due to the Botnia
plant? Most probably not. But it does demonstrat e that the plant is certainly not having a negative
effect on tourism in Gualeguaychú.
28. Despite the claims to the contrary made before the Court last week, Argentine officials
have been working hard to convince national travel reporters that the waters of the Uruguay river
166
Statement by Argentine Ministryof Foreign Affairs, International Trade and Culture, included in
Report of the Head of the Argentine Cabinet of Ministers, Alberto Angel Fernández, to the Argentine
Chamber of Deputies, Report No. 64, p. 136 (Mar. 2005), CMU, Vol. III, Ann. 46.
167CR2009/13, p.21, para.31 (Kohen): “Messieurs les juges, le tourisme et l’industrie de la pâte à papier ne
sont pas conciliables. Le carnaval et les odeurs nauséabondes ne sont pas conci”iables.
168“The Best January in Hist ory: 2009 Carnival in Gualeguaychú Earns 77 Million”Diario del Sur Digital ⎯
Concordia/Entre Rios, Argentina, 15 Mar. 2009). Uruguay’s Submission of New Documents, 30 June 2009, Ann. S19.
169Ibid.
170Ibid. - 57 -
along the Ñandubaysal beaches remain uncontaminated and are as welcoming as always. The
Gualeguaychú Tourism Board invited journalists to experience the waters of the River Uruguay for
171
themselves in order to spread the message and entice tourists to their beaches .
29. Indeed, in its Scientific and Technical Report, Argentina repeatedly asserts that the
172
Ñandubaysal Bay is not affected by factors in the river , such as effluents from the Botnia plant,
as we heard from Mr. Reichler earlier. In any ev ent, as we have shown, the Botnia plant does not
affect the river, so it could not affect Ñandubaysal Bay. The beach we h eard so much about last
week is in Ñandubaysal Bay. Thus Professor Kohen is wrong when he says the plant and
recreational uses on the beaches of Ñandubaysal Bay are incompatible 173. He is contradicted by
Argentina’s own evidence.
V. C ONCLUSION
30. Mr.President, Members of the Court, in conclusion, Uruguay has a right to utilize and
develop the Uruguay river in a way that is sustainabl e. Indeed, the river is of great significance to
Uruguay, because in contrast to Argentina, a larg e part of Uruguay’s territory lies in the river’s
basin. The right of sustainable use has been recognized in numerous instruments, from global
declarations and treaties to the Statute of th e Uruguay river. Sustainable development is
development that meets the needs of the presen t without compromising the ability of future
generations to meet their own needs. It is thus a matter of inter-generational equity, requiring that
economic development proceed in a manner that inte grates protection of the environment, which is
the human life-support system on which both present and future generations depend.
31. Uruguay’s environmental record is enviable, and the decision-making processes she has
put in place exemplify sustainable development. Senior Argentine officials have themselves
17“Summer in Gualeguaychú: The Entre Rios Municipa lity began its Season and Pr esented its Products to
Different Invited Journalists”, El País, 28 Dec. 2008, available at://www.mensajeroweb.com.ar/index.php?x=nota/
12781/1/verano-en-gualeguaychu.
172
Argentine 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 not tied to the river’ s natural and human-derived short-term
variations”).
17CR 2009/13 p. 21, para. 31. - 58 -
recognized Uruguay’s leadership in the field of environmental protection 174. Given this record, it
strains credulity to assert, as Argentina does, that Uruguay would execute an abrupt about-face with
regard to this one, well-known project.
32. Mr.President, Argentina has not ch allenged the right of Uruguay to develop
economically, and thus to meet the needs of pr esent and future generations of her citizens.
Argentina also does not challenge the proposition th at the 1975Statute must be interpreted in
accordance with its object and purpose, which is to guarantee equitable utilization and sustainable
development. Nor does Argentina contend that the Botnia plant violates standards adopted by
CARU for the protection of the river and its ecosystems ⎯ standards that Argentina herself
participated in formulating, and that may be considered an application of the concept of sustainable
development to the Uruguay river. Having accepted all of this ⎯ as indeed she must because there
is no evidence to the contrary ⎯ Argentina has left herself without any basis, in law or in fact, for
her belated contention that the Botnia plant should not be permitted to continue to operate because
of conditions that may develop at some distant point in the future, or wholly unsubstantiated harm
that the plant is allegedly causing in the present, and that Uruguay has shown to be non-existent.
33. If such conditions did somehow develop in the future, it would be for CARU to deal with
them. It is CARU’s responsibilit y, conferred upon it by the parties, to determine whether its
standards are adequate and, if not, to modify th em or develop new ones. CARU has done this in
the past ⎯ indeed, it is mandated to do so ⎯ and there is no reason to believe that it will not
continue to perform this function in the future.
34. Argentina would have the Court resolve this dispute in a way that would make
sustainable development a false promise. Ur uguay would appeal to the Court to recognize
Uruguay’s careful efforts to develop economically, in part through the Botnia plant, for what they
are: a paradigmatic example of sustainable development ⎯ development that has been planned
cautiously, that does not cause environmental harm, that is consistent with the 1975Statute, and
that meets the highest international standards.
17Former Argentine Foreign Minister Rafael Bielsa recognized Uruguay’s prominence in this regard, stating that
Uruguay is “the sixth leading nation in the world in terms of environmental protection”, CMU, Vol. II, Ann. 14. - 59 -
35. Mr. President, distinguished Members of the Court, this concludes my presentation, and
Uruguay’s argument for today. I thank you for your kind and patient attention.
The VICE-PRESIDENT, Acting President: I thank Professor McCaffrey for his
presentation. M. le jugeBennouna a une question à poser aux deux Parties. Monsieur le juge
Bennouna, vous avez la parole.
M.BENNOUNA: Je vous remercie, Monsieur le président. Ma question est adressée aux
deux Parties. Cette question est la suivante: Qu’est-ce que les Parties entendent par un «expert
indépendant» auquel elles ont pu avoir recours ? En particulier, dans le contexte de l’affaire dont la
Cour est saisie, est-ce qu’un expert mandaté par l’une ou l’autre des Parties peut être qualifié
d’expert indépendant ? Je vous remercie, Monsieur le président.
Le VICE-PRESIDENT, faisant fonction de président: Je vous remercie, Monsieur le juge.
Le texte précis de cette question sera communiqué a ux Parties sous forme écrite dès que possible.
Conformément à l’usage, les Parties sont invitées à répondre à cette question lors des audiences à
venir. L’Uruguay pourra y répondre durant la su ite de son premier tour de plaidoiries tandis que
l’Argentine aura l’occasion de le faire lors de son second tour.
Voilà qui met un terme aux plaidoiries de ce jour. La Cour se réunira à nouveau demain
matin à dix heures. L’audience est levée.
L’audience est levée à 12 h 40.
___________
Public sitting held on Tuesday 22 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)