INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Press Release
Unofficial
Summary 2010/1
20 April 2010
Pulp Mills on the River Uruguay (Argentina v. Uruguay)
Summary of the Judgment of 20 April 2010
1. History of the proceedings and submissions of the Parties (paras. 1-24)
On 4 May 2006, the Argentine Republic (hereinafter “Argentina”) filed in the Registry of the
Court an Application instituting proceedings against the Eastern Republic of Uruguay (hereinafter
“Uruguay”) in respect of a dispute concerning the breach, allegedly committed by Uruguay, of
obligations under the Statute of the River Uruguay (United Nations, Treaty Series (UNTS) ,
Vol.1295, No.I-21425, p.340), a treaty signed by Argentina and Uruguay at Salto (Uruguay) on
26February1975 and having entered into force on 18September1976 (hereinafter the
“1975Statute”); in the Application, Argentina stated that this breach arose out of “the
authorization, construction and future commissioning of two pulp mills on the River Uruguay”,
with reference in particular to “the effects of such activities on the quality of the waters of the River
Uruguay and on the areas affected by the river”.
In its Application, Argentina, referring to Article 36, paragraph 1, of the Statute of the Court,
seeks to found the jurisdiction of the Court on Article 60, paragraph 1, of the 1975 Statute.
On 4 May 2006, immediately after the filing of the Application, Argentina also submitted a
request for the indication of provisional measures based on Article 41 of th e Statute and Article 73
of the Rules of Court.
Since the Court included upon the Bench no judge of the nationality of the Parties, each of
them exercised its right under Article 31, paragr aph 3, of the Statute to choose a judge ad hoc to sit
in the case. Argentina chose MR r.Elmilioinuesa, and Uruguay chose
Mr. Santiago Torres Bernárdez.
By an Order of 13July2006, the Court, having heard the Parties, found “that the
circumstances, as they [then] present[ed] themse lves to [it], [we]re not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional measures”.
By another Order of the same date, the Court, taking account of the views of the Parties,
fixed 15January2007 and 20July2007, respectively, as the time-limits for the filing of a
Memorial by Argentina and a Counter-Memorial by Uruguay; those pleadings were duly filed
within the time-limits so prescribed.
On 29November2006, Uruguay, invoking Article41 of the Statute and Article73 of the
Rules of Court, in turn submitted a request for the indication of provisional measures. - 2 -
By an Order of 23January2007, the Court, having heard the Parties, found “that the
circumstances, as they [then] present[ed] themse lves to [it], [we]re not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional measures”.
By an Order of 14 September 2007, the Court, taking account of the agreement of the Parties
and of the circumstances of the case, authorized the submission of a Reply by Argentina and a
Rejoinder by Uruguay, and fixed 29January2008 and 29July2008 as the respective time-limits
for the filing of those pleadings. The Reply of Argentina and the Rejoinder of Uruguay were duly
filed within the time-limits so prescribed.
By letters dated 16June2 009 and 17June2009 respectively, the Governments of Uruguay
and Argentina notified the Court that they had co me to an agreement for the purpose of producing
new documents pursuant to Article56 of the Rules of Court. By letters of 23June2009, the
Registrar informed the Parties that the Court had decided to authorize them to proceed as they had
agreed. The new documents were duly filed within the agreed time-limit.
On 15July2009, each of the Parties, as pr ovided for in the agreement between them and
with the authorization of the Court, submitte d comments on the new documents produced by the
other Party. Each Party also filed documents in support of these comments.
Public hearings were held between 14 September 2009 and 2 October 2009. At the hearings,
Members of the Court put questions to the Partie s, to which replies were given orally and in
writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to Article 72
of the Rules of Court, one of the Parties submitted written comments on a written reply provided by
the other and received after the closure of the oral proceedings.
At the oral proceedings, the following final submissions were presented by the Parties:
On behalf of the Government of Argentina,
At the hearing of 29 September 2009:
“For all the reasons described in its Memorial, in its Reply and in the oral
proceedings, which it fully stands by, the Argentine Republic requests the
International Court of Justice:
1. to find that by authorizing
⎯ the construction of the ENCE mill;
⎯ the construction and commissioning of the Botnia mill and its associated facilities
on the left bank of the River Uruguay,
the Eastern Republic of Uruguay has violated the obligations incumbent on it under
the Statute of the River Uruguay of 26February1975 and has engaged its
international responsibility;
2. to adjudge and declare that, as a result, the Eastern Republic of Uruguay must:
(i) resume strict compliance with its obligations under the Statute of the River
Uruguay of 1975;
(ii) cease immediately the internationa lly wrongful acts by which it has engaged
its responsibility; - 3 -
(iii) re-establish on the ground and in lega l terms the situation that existed before
these internationally wrongful acts were committed;
(iv) pay compensation to the Argentine Republic for the damage caused by these
internationally wrongful acts that would not be remedied by that situation
being restored, of an amount to be determined by the Court at a subsequent
stage of these proceedings;
(v) provide adequate guarantees that it will refrain in future from preventing the
Statute of the River Uruguay of 1975 from being applied, in particular the
consultation procedure established by Chapter II of that Treaty.”
On behalf of the Government of Uruguay,
At the hearing of 2 October 2009:
“On the basis of the facts and arguments set out in Uruguay’s
Counter-Memorial, Rejoinder and during the oral proceedings, Uruguay requests that
the Court adjudge and declare that the claims of Argentina are rejected, and Uruguay’s
right to continue operating the Botnia plant in conformity with the provisions of the
1975 Statute is affirmed.”
2. Legal framework and facts of the case (paras. 25-47)
The Court recalls that the dispute before the Court has arisen in connection with the planned
construction authorized by Uruguay of one pulp mill and the construction and commissioning of
another, also authorized by Uruguay, on the River Uruguay.
The boundary between Argentina and Uruguay in the River Uruguay is defined by the
bilateral Treaty entered into for that pu rpose at Montevideo on 7April1961 (UNTS , Vol.635,
No. 9074, p. 98). Articles 1 to 4 of the Treaty delimit the boundary between the Contracting States
in the river and attribute certain islands and islets in it to them. Articles 5 and 6 concern the régime
for navigation on the river. Article 7 provides fo r the establishment by the parties of a “régime for
the use of the river” covering various subjects, including the conservation of living resources and
the prevention of water pollution of the river. Articles8 to10 lay down certain obligations
concerning the islands and islets and their inhabitants.
The “régime for the use of the river” contemplated in Article7 of the 1961Treaty was
established through the 1975 Statute. Article 1 of the 1975 Statute states that the parties adopted it
“in order to establish the joint machinery necessar y for the optimum and rational utilization of the
River Uruguay, in strict observance of the rights and obligations arising from treaties and other
international agreements in force for each of the parties”.
The first pulp mill at the root of the dispute was planned by “Celulosas de M’Bopicuá S.A.”
(hereinafter “CMB”), a company formed by the Spanish company ENCE (from the Spanish
acronym for “Empresa Nacional de Celulosas de España”, hereinafter “ENCE”). This mill,
hereinafter referred to as the “CMB (ENCE)” mill, w as to have been built on the left bank of the
River Uruguay in the Uruguayan department of Río Negro opposite the Argentine region of
Gualeguaychú, more specifically to the east of the city of Fray Bentos, near the “General San
Martín” international bridge. On 9 October 2003, MVOTMA (the Uruguayan Ministry of Housing,
Land Use Planning and Environmental Affairs) issu ed an initial environmental authorization to
CMB for the construction of the CMB (ENCE) mill. - 4 -
On 28November2005, Uruguay authorized preparatory work to begin for the construction
of the CMB (ENCE) mill (ground clearing). On 28 March 2006, the project’s promoters decided to
halt the work for 90 days. On 21 September 2006, they announced their intention not to build the
mill at the planned site on the bank of the River Uruguay.
The second industrial project at the root of th e dispute before the Court was undertaken by
“Botnia S.A.” and “Botnia Fray Bentos S.A.” (hereinafter “Botnia”), companies formed under
Uruguayan law in 2003 specially for the purpose by Oy Metsä-Botnia AB, a Finnish company.
This second pulp mill, called “Orion” (hereinafter the “Orion (Botnia)” mill), has been built on the
left bank of the River Uruguay, a few kilometr es downstream of the site planned for the CMB
(ENCE) mill, and also near the city of Fray Bent os. It has been operational and functioning since
9 November 2007.
3. Scope of the Court’s jurisdiction (paras. 48-66)
The Court observes that the Parties are in agre ement that the Court’s jurisdiction is based on
Article36, paragraph1, of the Statute of the Court and Article60, fi rst paragraph, of the
1975 Statute of the River Uruguay. The latter reads: “Any dispute concerning the interpretation or
application of the Treaty 1 and the Statute which cannot be settled by direct negotiations may be
submitted by either party to the International Court of Justice.” The Parties differ as to whether all
the claims advanced by Argentina fall within the ambit of the compromissory clause.
The Court notes that only those claims a dvanced by Argentina which are based on the
provisions of the 1975Statute fall within the Court’s jurisdiction ratione materiae under the
compromissory clause contained in Article60. Although Argentina, when making claims
concerning noise and “visual” pollution allegedly caused by the pulp mill, invokes the provision of
Article 36 of the 1975 Statute, the Court sees no basi s in it for such claims. The plain language of
Article36, which provides that “[t]he parties shall co-ordinate, through the Commission, the
necessary measures to avoid any ch ange in the ecological balance and to control pests and other
harmful factors in the river and the areas affected by it”, leaves no doubt that it does not address the
alleged noise and visual pollution as claimed by Argentina. Nor does the Court see any other basis
in the 1975 Statute for such claims; therefore, the claims relating to noise and visual pollution are
manifestly outside the jurisdiction of the Court conferred upon it under Article 60.
Similarly, no provision of the 1975Statute addresses the issue of “bad odours” complained
of by Argentina. Consequently, for the same r eason, the claim regarding the impact of bad odours
on tourism in Argentina also falls outside the Court’s jurisdiction.
The Court then turns to the issue of wh ether its jurisdiction under Article60 of the
1975Statute also encompasses obligations of the Parties under international agreements and
general international law invoked by Argentina and to the role of such agreements and general
international law in the context of the present case.
Examining Article 1 of the 1975 Statute, the Court takes the view that it sets out only the
purpose of the Statute, and that the reference to “the rights and obligations arising from treaties and
other international agreements in force for each of the parties” does not suggest that the Parties
sought to make compliance with their obligations under other treaties one of their duties under the
1975 Statute; rather, the reference to other trea ties emphasizes that the agreement of the Parties on
the Statute is reached in implementation of the provisions of Article7 of the 1961Treaty and “in
strict observance of the rights and obligations arising from treaties and other international
agreements in force for each of the parties” (emphasis added).
1
The Montevideo Treaty of 7April1961, concerningthe boundary constituted by the River Uruguay (UNTS ,
Vol. 635, No. 9074, p. 98; footnote added). - 5 -
The Court notes that the purpose of the provision in Article41(a) of the 1975 Statute is to
protect and preserve the aquatic environment by requ iring each of the parties to enact rules and to
adopt appropriate measures. Article41(a) distinguishes between applicable international
agreements and the guidelines and recommendations of international technical bodies. While the
former are legally binding and therefore the domestic rules and regulations enacted and the
measures adopted by the State have to comply with them, the latter, not being formally binding,
are, to the extent they are relevant, to be taken into account by the State so that the domestic rules
and regulations and the measures it adopts are compatible with those guidelines and
recommendations. However, Article 41 does not incor porate international agreements as such into
the 1975Statute but rather sets obligations for the parties to exercise their regulatory powers, in
conformity with applicable international agre ements, for the protection and preservation of the
aquatic environment of the River Uruguay. Under Article41(b) the existing requirements for
preventing water pollution and the severity of the penalties are not to be reduced. Finally,
paragraph (c) of Article41 concerns the obligation to in form the other party of plans to prescribe
rules on water pollution.
The Court concludes that there is no basis in the text of Article 41 of the 1975 Statute for the
contention that it constitutes a “referral clause”. Consequently, the various multilateral conventions
relied on by Argentina are not, as such, incorporated in the 1975 Statute. For that reason, they do
not fall within the scope of the compromissory clause and therefore the Court has no jurisdiction to
rule whether Uruguay has complied with its obligations thereunder.
Lastly, the Court notes that it had recourse, in interpreting the 1975 Statute, to the customary
rules on treaty interpretation as re flected in Article31 of the Vienna Convention on the Law of
Treaties. Accordingly the 1975Statute is to be “interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the [Statute] in their context and in light of its object
and purpose”. That interpretation will also take into account, together with the context, “any
relevant rules of international law applicable in the relations between the parties”. The Court
points out that, in the interpretation of the 1975 Statute, taking account of relevant rules of
international law applicable in the relations be tween the Parties nevertheless has no bearing on the
scope of its jurisdiction, which remains confin ed to disputes concerning the interpretation or
application of the Statute.
4. The alleged breach of procedural obligations (paras. 67-158)
The Court notes that the Application filed by Argentina on 4 May 2006 concerns the alleged
breach by Uruguay of both procedural and substantive obligations laid down in the 1975 Statute.
(a)The links between the procedural obligations and the substantive obligations
(paras. 71-79)
The Court notes that the object and purpose of the 1975 Statute, set forth in Article 1 of that
instrument, is for the Parties to achieve “the optimum and rational utilization of the River Uruguay”
by means of the “joint machinery” for co-operati on, which originates in the procedural obligations
and the substantive obligations under the Statute.
The Court has observed in this respect, in its Order of 13July2006, that such use should
allow for sustainable development which takes acc ount of “the need to safeguard the continued
conservation of the river environment and the ri ghts of economic development of the riparian
States” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of
13 July 2006, I.C.J. Reports 2006, p. 133, para. 80). - 6 -
The Court observes that it is by co-operating that the States concerned can jointly manage
the risks of damage to the environment that might be created by the plans initiated by one or other
of them, so as to prevent the damage in question, through the performance of both the procedural
and the substantive obligations laid down by the 1975 Statute. However, whereas the substantive
obligations are frequently worded in broad terms, the procedural obligations are narrower and more
specific, so as to facilitate the implementation of the 1975 Statute through a process of continuous
consultation between the parties concerned. The Court has described the régime put in place by the
1975Statute as a “comprehensive and progressive régime” (Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Provisional Measures, Or der of 13 July 2006, I.C.J. Reports 2006 , p. 133,
para.81), since the two categories of obligati ons mentioned above co mplement one another
perfectly, enabling the parties to achieve the object of the Statute which they set themselves in
Article 1.
The Court notes that the 1975 Statute created CARU (the Administrative Commission of the
River Uruguay) and established procedures in connecti on with that institution, so as to enable the
parties to fulfil their substantive obligations. However, nowhere does the 1975 Statute indicate that
a party may fulfil its substantive obligations by co mplying solely with its procedural obligations,
nor that a breach of procedural obligations automa tically entails the breach of substantive ones.
Likewise, the fact that the parties have complied with their substantive obligations does not mean
that they are deemed to have complied ipso facto with their procedural obligations, or are excused
from doing so. Moreover, the link between these two categories of obligations can also be broken,
in fact, when a party which has not complied with its procedural obligations subsequently abandons
the implementation of its planned activity.
Consequently, the Court considers that there is indeed a functional link, in regard to
prevention, between the two categories of obligations laid down by the 1975Statute, but that link
does not prevent the States parties from being requi red to answer for those obligations separately,
according to their specific content, and to assume, if necessary, the responsibility resulting from the
breach of them, according to the circumstances
(b) The procedural obligations and their interrelation (paras. 80-122)
The Court notes that the obligations to inform CARU of any plan falling within its purview
under the Statute, to notify the other party of the plan and to negotiate with the other party
constitute an appropriate means, accepted by the Parties, of achieving the objective which they set
themselves in Article 1 of the 1975 Statute. These obligations are all the more vital when a shared
resource is at issue, as in the case of the River Uruguay, which can only be protected through close
and continuous co-operation between the riparian States.
The Court examines the nature and role of CARU, and then considers whether Uruguay has
complied with its obligations to inform CARU and to notify Argentina of its plans.
The nature and role of CARU (paras. 84-93)
The Court notes, first, that CARU, in acco rdance with Article50 of the 1975Statute, was
endowed with legal personality “in order to perform its functions” and that the parties to the
1975Statute undertook to provide it with “the necessary resources and all the information and
facilities essential to its operations”. Consequently, far from being merely a transmission
mechanism between the parties, CARU has a perman ent existence of its own; it exercises rights
and also bears duties in carrying out the functions attributed to it by the 1975 Statute.
The Court observes that, like any internationa l organization with legal personality, CARU is
entitled to exercise the powers assigned to it by the 1975Statute and which are necessary to - 7 -
achieve the object and purpose of the latter, namely, “the optimum and rational utilization of the
River Uruguay” (Article 1).
Since CARU serves as a framework for consulta tion between the parties, particularly in the
case of the planned works contemplated in Article 7, first paragraph, of the 1975 Statute, neither of
them may depart from that framework unilaterall y, as they see fit, and put other channels of
communication in its place. By creating CARU and investing it with all the resources necessary
for its operation, the parties have sought to provide the best possible guarantees of stability,
continuity and effectiveness for their desire to co-operate in ensuring “the optimum and rational
utilization of the River Uruguay”.
That is why CARU plays a cen tral role in the 1975 Statute and cannot be reduced to merely
an optional mechanism available to the parti es which each may use or not, as it pleases. CARU
operates at all levels of utilization of the rive r and furthermore has been given the function of
drawing up rules in many areas associated with the joint management of the river and listed in
Article 56 of the 1975 Statute.
Consequently, the Court considers that, becau se of the scale and diversity of the functions
they have assigned to CARU, the Parties intended to make that international organization a central
component in the fulfilment of their obligations to co-operate as laid down by the 1975 Statute.
Uruguay’s obligation to inform CARU (paras. 94-111)
The Court notes that the obligation of the State initiating the planned activity to inform
CARU constitutes the first stage in the procedur al mechanism as a whole which allows the two
parties to achieve the object of the 1975Statute, namely, “the optimum and rational utilization of
the River Uruguay”. This stage, provided for in Article 7, first paragraph, involves the State which
is initiating the planned activity informing CARU th ereof, so that the latter can determine “on a
preliminary basis” and within a maximum period of 30days whether the plan might cause
significant damage to the other party.
To enable the remainder of the procedure to take its course, the parties have included
alternative conditions in the 1975Statute: either that the activity planned by one party should be
liable, in CARU’s opinion, to cause significant damage to the other, creating an obligation of
prevention for the first party to eliminate or minimize the risk, in consultation with the other party;
or that CARU, having been duly informed, should not have reached a decision in that regard within
the prescribed period.
The Court notes that the Parti es are agreed in considering th at the two planned mills were
works of sufficient importance to fall within the scope of Article 7 of the 1975 Statute, and thus for
CARU to have been informed of them. The same applies to the plan to construct a port terminal at
Fray Bentos for the exclusive use of the Orion (Botnia) mill, which included dredging work and
use of the riverbed.
However, the Court observes that the Parties disagree on whether there is an obligation to
inform CARU in respect of the extraction and use of water from the river for industrial purposes by
the Orion (Botnia) mill.
The Court also points out that while the Parties are agreed in recognizing that CARU should
have been informed of the two planned mills and the plan to construct the port terminal at Fray
Bentos, they nonetheless differ as regards the conten t of the information which should be provided
to CARU and as to when this should take place. - 8 -
The Court points out that the principle of prev ention, as a customary rule, has its origins in
the due diligence that is required of a State in its territory. It is “every State’s obligation not to
allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu
Channel (United Kingdomv. Albania), Merits, Judgment, I.C.J. Reports 1949 , p.22). A State is
thus obliged to use all the means at its disposal in order to avoid activities which take place in its
territory, or in any area under its jurisdiction, causing significant damage to the environment of
another State. This Court has established that this obligation “is now part of the corpus of
international law relating to the environment” (Leg ality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29).
In the view of the Court, the obligation to inform CARU allows for the initiation of
co-operation between the Parties which is necessary in order to fulfil the obligation of prevention.
This first procedural stage results in the 1975St atute not being applied to activities which would
appear to cause damage only to the State in whose territory they are carried out.
The Court observes that with regard to the River Uruguay, which constitutes a shared
resource, “significant damage to the other party” (Article7, first paragraph, of the 1975Statute)
may result from impairment of navigation, the régi me of the river or the quality of its waters.
Moreover, Article 27 of the 1975 Statute stipulates that:
“[t]he right of each party to use the waters of the river, within its jurisdiction, for
domestic, sanitary, industrial and agricu ltural purposes shall be exercised without
prejudice to the application of the procedure laid down in Articles7 to 12 when the
use is liable to affect the régime of the river or the quality of its waters”.
The Court notes that, in accordance with th e terms of Article7, first paragraph, the
information which must be provided to CARU, at this initial stage of the procedure, has to enable it
to determine swiftly and on a preliminary basis whether the plan might cause significant damage to
the other party. For CARU, at this stage, it is a question of deciding whether or not the plan falls
under the co-operation procedure laid down by the 1975Statute, and not of pronouncing on its
actual impact on the river and the quality of its waters.
The Court considers that the State planning activities referred to in Article 7 of the Statute is
required to inform CARU as soon as it is in possessi on of a plan which is sufficiently developed to
enable CARU to make the preliminary assessment (required by paragraph1 of that provision) of
whether the proposed works might cause significant dama ge to the other party. At that stage, the
information provided will not necessarily consist of a full assessment of the environmental impact
of the project, which will often require further tim e and resources, although, where more complete
information is available, this should, of course, be transmitted to CARU to give it the best possible
basis on which to make its preliminary assessment. In any event, the duty to inform CARU will
become applicable at the stage when the relevant authority has had the project referred to it with
the aim of obtaining initial environmental aut horization and before the granting of that
authorization.
The Court observes that, in the present case, Uruguay did not transmit to CARU the
information required by Article7, first paragr aph, in respect of the CMB (ENCE) and Orion
(Botnia) mills, despite the requests made to it by the Commission to that effect on several
occasions, in particular on 17October2002 and 21 April2003 with regard to the CMB (ENCE)
mill, and on 16November2004 w ith regard to the Orion (Botnia) mill. Uruguay merely sent
CARU, on 14 May 2003, a summary for public release of the environmental impact assessment for
the CMB (ENCE) mill. CARU considered this document to be inadequate and again requested
further information from Uruguay on 15 August 2003 and 12 September 2003. Moreover, Uruguay
did not transmit any document to CARU regarding the Orion (Botnia) mill. Consequently, Uruguay
issued the initial environmental authorizations to CMB on 9October2003 and to Botnia on
14February2005 without complying with the procedur e laid down in Article7, first paragraph. - 9 -
Uruguay therefore came to a decision on the e nvironmental impact of the projects without
involving CARU, thereby simply giving effect to its domestic legislation.
The Court further notes that on 12 April 2005 Uruguay granted an authorization to Botnia for
the first phase of the construction of the Orion (Botnia) mill and, on 5 July 2005, an authorization
to construct a port terminal for its exclusive use and to utilize the riverbed for industrial purposes,
without informing CARU of these projects in advance.
With regard to the extraction and use of wate r from the river, the Court takes the view that
this is an activity which forms an integral part of the commissioning of the Orion (Botnia) mill and
therefore did not require a separate referral to CARU.
Further, the Court considers that the inform ation on the plans for the mills which reached
CARU via the companies concerned or from other non-governmental sources cannot substitute for
the obligation to inform laid down in Article 7, fi rst paragraph, of the 1975 Statute, which is borne
by the party planning to construct the works referred to in that provision. Similarly, in the case
concerning Certain Questions of Mutual A ssistance in Criminal Matters (Djibouti v. France), the
Court observed that
“[i]f the information eventually came to Djibouti through the press, the information
disseminated in this way could not be taken into account for the purposes of the
application of Article 17 [of the Convention on Mutual Assistance in Criminal Matters
between the two countries, providing that ‘[r] easons shall be given for any refusal of
mutual assistance’]” (Judgment of 4 June 2008, para. 150).
The Court concludes that Uruguay, by not informing CARU of the planned works before the
issuing of the initial environmenta l authorizations for each of the mills and for the port terminal
adjacent to the Orion (Botnia) mill, has failed to comply with the obligation imposed on it by
Article 7, first paragraph, of the 1975 Statute.
Uruguay’s obligation to notify the plans to the other party (paras. 112-122)
The Court notes that, under the terms of Article 7, second paragraph, of the 1975 Statute, if
CARU decides that the plan might cause significant damage to the other party or if a decision
cannot be reached in that regard, “the party con cerned shall notify the other party of this plan
through the said Commission”. It adds that, under th e terms of Article7, third paragraph, of the
1975Statute, the notification must describe “t he main aspects of the work” and “any other
technical data that will enable the notified part y to assess the probable impact of such works on
navigation, the régime of the river or the quality of its waters”.
In the opinion of the Court, the obligation to notify is intended to create the conditions for
successful co-operation between the parties, enabli ng them to assess the plan’s impact on the river
on the basis of the fullest possible information a nd, if necessary, to negotiate the adjustments
needed to avoid the potential damage that it might cause.
Article 8 stipulates a period of 180 days, which may be extended by the Commission, for the
notified party to respond in connection with the plan, subject to it requesting the other party,
through the Commission, to supplement as necessary the documentation it has provided.
If the notified party raises no objections, the other party may carry out or authorize the work
(Article9). Otherwise, the former must notify the latter of those aspects of the work which may
cause it damage and of the suggested changes (A rticle11), thereby opening a further 180-day
period of negotiation in which to reach an agreement (Article 12). - 10 -
The obligation to notify is therefore an essentia l part of the process leading the parties to
consult in order to assess the risks of the plan and to negotiate possible changes which may
eliminate those risks or minimize their effects.
The Court notes that the environmental impact assessments which are necessary to reach a
decision on any plan that is liable to cause significant transboundary harm to another State must be
notified by the party concerned to the other pa rty, through CARU, pursuant to Article7, second
and third paragraphs, of the 1975 Statute. This no tification is intended to enable the notified party
to participate in the process of ensuring that the assessment is complete, so that it can then consider
the plan and its effects with a full knowledge of the facts (Article 8 of the 1975 Statute).
The Court observes that this notification must take place before the State concerned decides
on the environmental viability of the plan, taki ng due account of the environmental impact
assessment submitted to it.
In the present case, the Court observes that the notification to Argentina of the environmental
impact assessments for the CMB (ENCE) and Or ion (Botnia) mills did not take place through
CARU, and that Uruguay only transmitted those ass essments to Argentina after having issued the
initial environmental authorizations for the two mills in question.
The Court concludes that Uruguay failed to comply with its obligation to notify the plans to
Argentina through CARU under Article 7, second and third paragraphs, of the 1975 Statute.
(c) Whether the Parties agreed to derogate from the procedural obligations set out in the
1975 Statute (paras. 123-150)
The “understanding” of 2 March 2004 between Argentina and Uruguay (paras. 125-131)
The Court notes that while the existence of the “understanding” which the Foreign Ministers
of the two States came to on 2 March 2004 has not been contested by the Parties, they differ as to
its content and scope. Whatever its specific designation and in whatever instrument it may have
been recorded (the CARU minutes), this “understa nding” is binding on the Parties, to the extent
that they have consented to it and must be ob served by them in good faith. They are entitled to
depart from the procedures laid down by the 1975 Statute, in respect of a given project pursuant to
an appropriate bilateral agreement. The Court recalls that the Parties disagree on whether the
procedure for communicating information provided for by the “understanding” would, if applied,
replace that provided for by the 1975 Statute. Be that as it may, such replacement was dependent
on Uruguay complying with the procedure laid down in the “understanding”.
The Court finds that the information which Uruguay agreed to transmit to CARU in the
“understanding” of 2March 2004 w as never transmitted. Consequently, the Court cannot accept
Uruguay’s contention that the “understanding” put an end to its dispute with Argentina in respect
of the CMB (ENCE) mill, concerning implementati on of the procedure laid down by Article7 of
the 1975 Statute.
Further, the Court observes that, when th is “understanding” was reached, only the CMB
(ENCE) project was in question, and that it ther efore cannot be extended to the Orion (Botnia)
project, as Uruguay claims. The reference to both mills is made only as from July2004, in the
context of the PROCEL plan. However, this plan only concerns the measures to monitor and
control the environmental quality of the river wate rs in the areas of the pulp mills, and not the
procedures under Article 7 of the 1975 Statute. - 11 -
The Court concludes that the “understanding” of 2 March 2004 would have had the effect of
relieving Uruguay of its obligations under Article 7 of the 1975 Statute, if that was the purpose of
the “understanding”, only if Uruguay had complied with the terms of the “understanding”. In the
view of the Court, it did not do so. Therefore the “understanding” cannot be regarded as having had
the effect of exempting Uruguay from compliance with the procedural obligations laid down by the
1975 Statute.
The agreement setting up the High-Level Technical Group (the GTAN) (paras. 132-150)
The Court notes that, in furtherance of th e agreement reached on 5May2005 between the
Presidents of Argentina and Uruguay, the Foreign Ministries of the two States issued a press
release on 31 May 2005 announcing the creation of the High-Level Technical Group, referred to by
the Parties as the GTAN.
The Court points out that there is no reason to distinguish, as Uruguay and Argentina have
both done for the purpose of their respective cases, between referral on the basis of Article 12 and
of Article60 of the 1975Statute. While it is true that Article12 provides for recourse to the
procedure indicated in Chapter XV, should the negotiations fail to produce an agreement within the
180-day period, its purpose ends there. Article 60 then takes over, in particular its first paragraph,
which enables either Party to submit to the C ourt any dispute concerning the interpretation or
application of the Statute which cannot be settled by direct negotiations. This wording also covers
a dispute relating to the interpretation or applica tion of Article12, like any other provision of the
1975 Statute.
The Court notes that the press release of 31 May 2005 sets out an agreement between the two
States to create a negotiating framework, the GTAN, in order to study, analyse and exchange
information on the effects that the operation of th e cellulose plants that were being constructed in
the Eastern Republic of Uruguay could have on the ecosystem of the shared Uruguay river, with
“the group [having] to produce an initial report within a period of 180 days”.
The Court recognizes that the GTAN was created with the aim of enabling the negotiations
provided for in Article12 of the 1975Statute, al so for a 180-day period, to take place. Under
Article11, these negotiations between the parties wi th a view to reaching an agreement are to be
held once the notified party has sent a communication to the other party, through the Commission,
specifying
“which aspects of the work or the programme of operations might significantly impair
navigation, the régime of the river or the quality of its waters, the technical reasons on
which this conclusion is based and the changes suggested to the plan or programme of
operations”.
The Court is aware that the negotiation provide d for in Article 12 of the 1975 Statute forms
part of the overall procedure laid down in Articles 7 to 12, which is structured in such a way that
the parties, in association with CARU, are able, at the end of the process, to fulfil their obligation to
prevent any significant transboundary harm which might be caused by potentially harmful activities
planned by either one of them.
The Court therefore considers that the agreement to set up the GTAN, while indeed creating
a negotiating body capable of enabling the Parties to pursue the same objective as that laid down in
Article12 of the 1975Statute, cannot be interprete d as expressing the agreement of the Parties to
derogate from other procedural obligations laid down by the Statute.
Consequently, the Court finds that Argentina, in accepting the creation of the GTAN, did not
give up, as Uruguay claims, the other procedural rights belonging to it by virtue of the - 12 -
1975Statute, nor the possibility of invoking Uruguay’s responsibility for any breach of those
rights. Nor did it consent to suspending the operation of the procedural provisions of the
1975Statute. Indeed, under Article57 of the Vienna Convention on the Law of Treaties of
23May1969, concerning “[s]uspension of the oper ation of a treaty”, including, according to the
International Law Commission’s commentary, suspension of “the operation of... some of its
provisions” (Yearbook of the International Law Commission , 1966, Vol. II, p. 251), suspension is
only possible “in conformity with the provisions of the treaty” or “by consent of all the parties”.
The Court further observes that the agreemen t to set up the GTAN, in referring to “the
cellulose plants that are being c onstructed in the Eastern Republic of Uruguay”, is stating a simple
fact and cannot be interpreted, as Uruguay claims, as an acceptance of their construction by
Argentina.
The Court finds that Uruguay was not entitled, for the duration of the period of consultation
and negotiation provided for in Articles7 to 12 of the 1975Statute, either to construct or to
authorize the construction of the planned mills and the port terminal. It would be contrary to the
object and purpose of the 1975Statute to embark on disputed activities before having applied the
procedures laid down by the “joint machinery necessary for the optimum and rational utilization of
the [r]iver” (Article1). However, Article9 provides that: “[i]f the notified party raises no
objections or does not respond within the period established in Article 8 [180 days], the other party
may carry out or authorize the work planned”.
Consequently, in the opinion of the Court, as long as the procedural mechanism for
co-operation between the parties to prevent significant damage to one of them is taking its course,
the State initiating the planned activity is obliged not to authorize such work and, a fortiori , not to
carry it out.
The Court notes, moreover, that the 1975Statute is perfectly in keeping with the
requirements of international law on the subject , since the mechanism for co-operation between
States is governed by the principle of good faith. Indeed, according to customary international law,
as reflected in Article 26 of the 1969 Vienna Conve ntion on the Law of Treaties, “[e]very treaty in
force is binding upon the parties to it and must be performed by them in good faith”. That applies
to all obligations established by a treaty, includi ng procedural obligations which are essential to
co-operation between States.
In the view of the Court, there would be no point to the co-operation mechanism provided
for by Articles7 to 12 of the 1975Statute if the party initiating the planned activity were to
authorize or implement it without waiting for that mechanism to be brought to a conclusion.
Indeed, if that were the case, the negotiations between the parties would no longer have any
purpose.
In this respect, contrary to what Uruguay claims, the preliminary work on the pulp mills on
sites approved by Uruguay alone does not constitute an exception. This work does in fact form an
integral part of the construction of the planned mills.
The Court concludes that the agreement to set up the GTAN did not permit Uruguay to
derogate from its obligations of information and notification under Article7 of the 1975Statute,
and that by authorizing the construction of the mills and the port terminal at Fray Bentos before the
expiration of the period of negotiation, Uruguay faile d to comply with the obligation to negotiate
laid down by Article12 of the Statute. Con sequently, Uruguay disregarded the whole of the
co-operation mechanism provided for in Articles 7 to 12 of the 1975 Statute. - 13 -
(d) Uruguay’s obligations following the end of the negotiation period (paras. 151-158)
Article12 refers the Parties, should they fail to reach an agreement w ithin 180days, to the
procedure indicated in Chapter XV.
Chapter XV contains a single article, Article 60, according to which:
“Any dispute concerning the interpretati on or application of the Treaty and the
Statute which cannot be settled by direct negotiations may be submitted by either
party to the International Court of Justice.
In the cases referred to in Articles58 and 59, either party may submit any
dispute concerning the interpretation or application of the Treaty and the Statute to the
International Court of Justice, when it has not been possible to settle the dispute within
180 days following the notification referred to in Article 59.”
The Court observes that the “no construction obligation”, said to be borne by Uruguay
between the end of the negotiation period and the decision of the Court, is not expressly laid down
by the 1975Statute and does not follow from its provisions. Article9 only provides for such an
obligation during the performance of the procedure laid down in Articles 7 to 12 of the Statute.
Furthermore, in the event of disagreemen t between the parties on the planned activity
persisting at the end of the negotiation period, the Statute does not provide for the Court, to which
the matter would be submitted by the State concerned, according to Argentina, to decide whether or
not to authorize the activity in question. The C ourt points out that, while the 1975 Statute gives it
jurisdiction to settle any dispute concerning its in terpretation or application, it does not however
confer on it the role of deciding in the last resort whether or not to authorize the planned activities.
Consequently, the State initiating the plan may, at the end of the negotiation period, proceed with
construction at its own risk.
In its Order of 13 July 2006, the Court took th e view that the “construction [of the mills] at
the current site cannot be deemed to create a faitaccompli” (Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133,
para.78). Thus, in pronouncing on the merits in the dispute between the Parties, the Court is the
ultimate guarantor of their compliance with the 1975 Statute.
The Court concludes that Uruguay did not bear any “no construction obligation” after the
negotiation period provided for in Article12 expired on 3February2006, the Parties having
determined at that date that the negotiati ons undertaken within the GTAN had failed.
Consequently the wrongful conduct of Uruguay could not extend beyond that period.
5. Substantive obligations (paras. 159-266)
Having established that Uruguay breached its pr ocedural obligations to inform, notify and
negotiate to the extent and for the reasons given above, the Court turns to the question of the
compliance of that State with the substantive obligations laid down by the 1975 Statute.
Burden of proof and expert evidence (paras. 160-168)
Before taking up the examination of the alleged violations of substantive obligations under
the 1975Statute, the Court addresses two preliminary issues, namely, the burden of proof and
expert evidence. - 14 -
To begin with, the Court considers that, in accordance with the well-established principle of
onus probandi incumbit actori, it is the duty of the party which asserts certain facts to establish the
existence of such facts. This principle which h as been consistently upheld by the Court applies to
the assertions of fact both by the Applicant and the Respondent.
The Court observes that it is of course to be e xpected that the Applicant should, in the first
instance, submit the relevant evidence to substantiate its claims. This does not, however, mean that
the Respondent should not co-operate in the provisi on of such evidence as may be in its possession
that could assist the Court in resolving the dispute submitted to it.
Regarding the arguments put forward by Arge ntina on the reversal of the burden of proof
and on the existence, vis-à-vis each Party, of an equal onus to prove under the 1975Statute, the
Court considers that while a precautionary approa ch may be relevant in the interpretation and
application of the provisions of the Statute, it do es not follow that it operates as a reversal of the
burden of proof. The Court is also of the view that there is nothing in the 1975Statute itself to
indicate that it places the burden of proof equally on both Parties.
The Court next turns to the issue of expert evidence. Both Argentina and Uruguay have
placed before the Court a vast amount of factual and scientific material in support of their
respective claims. They have also submitted reports and studies prepared by the experts and
consultants commissioned by each of them, as well as others commissioned by the International
Finance Corporation in its quality as lender to th e project. Some of these experts have also
appeared before the Court as counsel for one or the other of the Parties to provide evidence.
The Parties, however, disagree on the authority and reliability of the studies and reports
submitted as part of the record and prepared, on the one hand, by their respective experts and
consultants, and on the other, by the experts of the IFC, which contain, in many instances,
conflicting claims and conclusions.
The Court states that it has given most careful attention to the material submitted to it by the
Parties, as shown in its consideration of the evidence with respect to alleged violations of
substantive obligations. Regarding those experts who appeared before it as counsel at the hearings,
the Court observes that it would have found it more useful had they been presented by the Parties
as expert witnesses under Articles57 and 64 of the Rules of Court, instead of being included as
counsel in their respective delegations. The Court indeed considers that those persons who provide
evidence before the Court based on their scientif ic or technical knowledge and on their personal
experience should testify before the Court as experts, witnesses or in some cases in both capacities,
rather than counsel, so that they may be submitt ed to questioning by the other party as well as by
the Court.
As for the independence of such experts, the Court does not find it necessary in order to
adjudicate the present case to enter into a general discussion on the relative merits, reliability and
authority of the documents and studies prepared by the experts and consultants of the Parties. It
needs only to be mindful of the fact that, despite the volume and complexity of the factual
information submitted to it, it is the responsib ility of the Court, after having given careful
consideration to all the evidence placed before it by the Parties, to determine which facts must be
considered relevant, to assess their probative value, and to draw conclusions from them as
appropriate. Thus, in keeping with its practice, the Court will make its own determination of the
facts, on the basis of the evidence presented to it, and then it will apply the relevant rules of
international law to those facts which it has found to have existed. - 15 -
Alleged violations of substantive obligations (paras. 169-266)
(a) The obligation to contribute to the optimum and rational utilization of the river (Article 1
of the 1975 Statute) (paras. 170-177)
The Court observes that Article 1, as stated in the title to Chapter I of the 1975 Statute, sets
out the purpose of the Statute. As such, it informs the interpretation of the substantive obligations,
but does not by itself lay down specific rights and obligations for the parties. Optimum and
rational utilization is to be achieved through co mpliance with the obligations prescribed by the
1975Statute for the protection of the environmen t and the joint management of this shared
resource. This objective must also be ensu red through CARU, which constitutes “the joint
machinery” necessary for its achievement, and through the regulations adopted by it as well as the
regulations and measures adopted by the Parties.
The Court recalls that the Parties concluded the treaty embodying the 1975Statute, in
implementation of Article7 of the 1961Treaty, re quiring the Parties jointly to establish a régime
for the use of the river covering, inter alia , provisions for preventing pollution and protecting and
preserving the aquatic environment. Thus, optimum and rational utilization may be viewed as the
cornerstone of the system of co-operation establis hed in the 1975Statute and the joint machinery
set up to implement this co-operation.
The Court considers that the attainment of optimum and rational utilization requires a
balance between the Parties’ rights and needs to use the river for economic and commercial
activities on the one hand, and the obligation to prot ect it from any damage to the environment that
may be caused by such activities, on the other. Th e need for this balance is reflected in various
provisions of the 1975Statute establishing rights and obligations for the Parties, such as
Articles 27, 36, and 41. The Court concludes that it will therefore assess the conduct of Uruguay in
authorizing the construction and operation of the Orion (Botnia) mill in the light of those
provisions of the 1975 Statute, and the rights and obligations prescribed therein.
Regarding Article27, it is the view of the Court that it embodies the interconnectedness
between equitable and reasonable utilization of a shared resource and the balance between
economic development and environmental prot ection that is the essence of sustainable
development.
(b) The obligation to ensure that the manageme nt of the soil and woodland does not impair
the régime of the river or the quality of its waters (Article 35 of the 1975 Statute)
(paras. 178-180)
The Court is of the view that Argentina has not established its contention that Uruguay’s
decision to carry out major eucalyptus planting operations, to supply the raw material for the Orion
(Botnia) mill, has an impact not only on management of the soil and Uruguayan woodland, but also
on the quality of the waters of the river.
(c) The obligation to co-ordinate measures to avoid changes in the ecological balance
(Article 36 of the 1975 Statute) (paras. 181-189)
The Court recalls that Article36 provides that “[t]he parties shall co -ordinate, through the
Commission, the necessary measures to avoid any ch ange in the ecological balance and to control
pests and other harmful factors in the river and the areas affected by it”.
It is the opinion of the Court that compliance with this obligation cannot be expected to
come through the individual action of either Part y, acting on its own. It s implementation requires - 16 -
co-ordination through the Commission. It reflects the common interest dimension of the
1975 Statute and expresses one of the purposes for the establishment of the joint machinery which
is to co-ordinate the actions and measures taken by the Parties for the sustainable management and
environmental protection of the river. The Parti es have indeed adopted such measures through the
promulgation of standards by CARU. These standards are to be found in Sections E3 and E4 of the
CARU Digest. One of the purposes of SectionE3 is “[t]o protect and preserve the water and its
ecological balance”. Similarly, it is stated in SectionE4 that the section was developed “in
accordance with . . . Articles 36, 37, 38, and 39”.
In the view of the Court, the purpose of Article36 of the 1975Statute is to prevent any
transboundary pollution liable to change the ecological balance of the river by co-ordinating,
through CARU, the adoption of the necessary measures. It thus imposes an obligation on both
States to take positive steps to avoid changes in the ecological balance. These steps consist not
only in the adoption of a regulatory framework, as has been done by the Parties through CARU, but
also in the observance as well as enforcement by both Parties of the measures adopted. As the
Court emphasized in the Gabčíkovo-Nagymaros case:
“in the field of environmental protection, vigilance and prevention are required on
account of the often irreversible character of damage to the environment and of the
limitations inherent in the very mechanis m of reparation of this type of damage”
(Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997 ,
p. 78, para. 140).
The Court considers that the obligation laid down in Article36 is addressed to both Parties
and prescribes the specific conduct of co-o rdinating the necessary measures through the
Commission to avoid changes to the ecological ba lance. An obligation to adopt regulatory or
administrative measures either individually or jo intly and to enforce them is an obligation of
conduct. Both Parties are therefore called upon, under Article36, to exercise due diligence in
acting through the Commission for the necessary measures to preserve the ecological balance of the
river.
This vigilance and prevention is all the more important in the preservation of the ecological
balance, since the negative impact of human activities on the waters of the river may affect other
components of the ecosystem of the watercourse such as its flora, fauna, and soil. The obligation to
co-ordinate, through the Commission, the a doption of the necessary measures, as well as their
enforcement and observance, assumes, in this c ontext, a central role in the overall system of
protection of the River Uruguay established by the 1975Statute. It is therefore of crucial
importance that the Parties respect this obligation.
The Court concludes that Argentina has not convincingly demonstrated that Uruguay has
refused to engage in such co-ordination as envisaged by Article 36, in breach of that provision.
(d) The obligation to prevent pollution and p reserve the aquatic environment (Article41 of
the 1975 Statute) (paras. 190-219)
Article 41 provides that:
“Without prejudice to the functions assigned to the Commission in this respect,
the parties undertake:
(a) to protect and preserve the aquatic envir onment and, in particular, to prevent its
pollution, by prescribing appropriate rules and [adopting appropriate] measures in
accordance with applicable internationa l agreements and in keeping, where - 17 -
relevant, with the guidelines and reco mmendations of international technical
bodies;
(b) not to reduce in their respective legal systems:
1. the technical requirements in force for preventing water pollution, and
2. the severity of the penalties established for violations;
(c) to inform one another of any rules whic h they plan to prescribe with regard to
water pollution in order to establish equi valent rules in their respective legal
systems.”
Before turning to the analysis of Article 41, the Court recalls that:
“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 cor pus of international law relating to the
environment” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996 (I), p. 242, para. 29).
First, in the view of the Court, Article 41 makes a clear distinc tion between regulatory
functions entrusted to CARU under the 1975Statute, which are dealt with in Article56 of the
Statute, and the obligation it imposes on the Parties to adopt rules and measures individually to
“protect and preserve the aquatic environment and, in particular, to prevent its pollution”. Thus,
the obligation assumed by the Parties under Artic le41, which is distinct from those under
Articles36 and 56 of the 1975Statute, is to a dopt appropriate rules and measures within the
framework of their respective domestic legal systems to protect and preserve the aquatic
environment and to prevent pollution. This conclusion is supported by the wording of
paragraphs (b) and (c) of Article41, which refer to the need not to reduce the technical
requirements and severity of the penalties already in force in the respective legislation of the
Parties as well as the need to inform each other of the rules to be promulgated so as to establish
equivalent rules in their legal systems.
Secondly, it is the opinion of the Court that a simple reading of the text of Article41
indicates that it is the rules and measures that are to be prescribed by the Parties in their respective
legal systems which must be “in accordance with applicable international agreements” and “in
keeping, where relevant, with the guidelines a nd recommendations of international technical
bodies”.
Thirdly, the obligation to “preserve the aquatic environment, and in particular to prevent
pollution by prescribing appropriate rules and measures” is an obligation to act with due diligence
in respect of all activities which take place under the ju risdiction and control of each party. It is an
obligation which entails not only the adoption of ap propriate rules and measures, but also a certain
level of vigilance in their enforcement and the exercise of administrative control applicable to
public and private operators, such as the monitori ng of activities undertaken by such operators, to
safeguard the rights of the other party. The responsibility of a party to the 1975Statute would
therefore be engaged if it was shown that it had fail ed to act diligently and thus take all appropriate
measures to enforce its relevant regulations on a public or private operator under its jurisdiction.
The obligation of due diligence under Article 41 (a) in the adoption and enforcement of appropriate
rules and measures is further reinforced by the requirement that such rules and measures must be
“in accordance with applicable international agreements” and “in keeping, where relevant, with the
guidelines and recommendations of international technical bodies”. This requirement has the
advantage of ensuring that the ru les and measures adopted by the parties both have to conform to - 18 -
applicable international agreements and to ta ke account of internationally agreed technical
standards.
Finally, the Court notes that the scope of the obligation to prevent pollution must be
determined in light of the definition of pollution gi ven in Article 40 of the 1975 Statute. Article 40
provides that: “For the purposes of this Statute, pollution shall mean the direct or indirect
introduction by man into the aquatic environment of substances or energy which have harmful
effects.” The term “harmful effects” is defined in the CARU Digest as:
“any alteration of the water quality that prev ents or hinders any legitimate use of the
water, that causes deleterious effects or harm to living resources, risks to human
health, or a threat to water activities including fishing or reduction of recreational
activities” (Title I, Chapter I, Section. 2, Article 1 (c) of the Digest (E3)).
In the view of the Court, the rules by whic h any allegations of breach are to be measured
and, more specifically, by which the existence of “harmful effects” is to be determined, are to be
found in the 1975 Statute, in the co-ordinated position of the Parties established through CARU (as
the introductory phrases to Article41 and Article56 of the Statute contemplate) and in the
regulations adopted by each Party within the limits prescribed by the 1975Statute (as
paragraphs (a), (b) and (c) of Article 41 contemplate).
The functions of CARU under Article 56 (a) include making rules governing the prevention
of pollution and the conservation and preservation of living resources. In the exerc
ise of its
rule-making power, the Commission adopted in 1984 the Digest on the uses of the waters of the
River Uruguay and has amended it since. In 1990, when Section E3 of the Digest was adopted, the
Parties recognized that it was drawn up under Article 7 (f) of the 1961 Treaty and Articles 35, 36,
41 to 45 and 56 (a) (4) of the 1975 Statute.
The standards laid down in the Digest are not, however, exhaustive. As pointed out earlier,
they are to be complemented by the rules and measures to be adopted by each of the Parties within
their domestic laws.
The Court will apply, in addition to the 1975 Statute, these two sets of rules to determine
whether the obligations undertaken by the Parties ha ve been breached in terms of the discharge of
effluent by the mill as well as in respect of the impact of those discharges on the quality of the
waters of the river, on its ecological balance and on its biodiversity.
Environmental Impact Assessment (paras. 203-219)
The Court notes that in order for the Parties properly to comply with their obligations under
Article 41 (a) and (b) of the 1975 Statute, they must, for the purposes of protecting and preserving
the aquatic environment with respect to activ ities which may be liable to cause transboundary
harm, carry out an environmental impact assessment. As the Court has observed in the case
concerning the Dispute Regarding Navigational and Related Rights,
“there are situations in which the parties’ intent upon conclusion of the treaty was, or
may be presumed to have been, to give the terms used ⎯ or some of them ⎯ a
meaning or content capable of evolving, not one fixed once and for all, so as to make
allowance for, among other things, devel opments in international law” (Dispute
Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of
13 July 2009, para. 64).
In this sense, the obligation to protect and preserve, under Article 41 (a)of the Statute, has to
be interpreted in accordance with a practice, which in recent years has gained so much acceptance - 19 -
among States that it may now be considered a requirement under general international law to
undertake an environmental impact assessment where there is a risk that the proposed industrial
activity may have a significant adverse impact in a transboundary context, in particular, on a shared
resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies,
would not be considered to have been exercised , if a party planning works liable to affect the
régime of the river or the quality of its wate rs did not undertake an environmental impact
assessment on the potential effects of such works.
The Court observes that neither the 1975Statute nor general international law specify the
scope and content of an environmental impact as sessment. It points out moreover that Argentina
and Uruguay are not parties to the Espoo Conven tion on Environmental Im pact Assessment in a
Transboundary Context. Finally, the Court notes that the other instrument to which Argentina
refers in support of its arguments, namely, the UNEP Goals and Principles, is not binding on the
Parties, but, as guidelines issued by an international technical body, has to be taken into account by
each Party in accordance with Article41(a) in adopting measures within its domestic regulatory
framework. Moreover, this instrument provides only that the “environmental effects in an EIA
should be assessed with a degree of detail comme nsurate with their likely environmental
significance” (Principle5) without giving any indication of minimum core components of the
assessment. Consequently, it is the view of the Court that it is for each State to determine in its
domestic legislation or in the authorization pro cess for the project, the specific content of the
environmental impact assessment required in each case, having regard to the nature and magnitude
of the proposed development and its likely adver se impact on the environment as well as to the
need to exercise due diligence in conducting such an assessment. Th e Court also considers that an
environmental impact assessment must be conduc ted prior to the implementation of a project.
Moreover, once operations have started and, wher e necessary, throughout the life of the project,
continuous monitoring of its effects on the environment shall be undertaken.
Next, the Court deals with the specific points in dispute with regard to the role of this type of
assessment in the fulfilment of the substantive obliga tions of the Parties, that is to say, first,
whether such an assessment should have, as a matter of method, necessarily considered possible
alternative sites, taking into account the receiving ca pacity of the river in the area where the plant
was to be built and, secondly, whether the populations likely to be affected, in this case both the
Uruguayan and Argentine riparian populations, should have, or have in fact, been consulted in the
context of the environmental impact assessment.
The siting of the Orion (Botnia) mill at Fray Bentos (paras. 207-214)
Regarding the question of whether Uruguay failed to exercise due diligence in conducting
the environmental impact assessment, particularly with respect to the choice of the location of the
plant, the Court notes that under UNEP Principle 4 (c), an environmental impact assessment should
include, at a minimum, “[a] description of practical alternatives, as appropriate”. It is also to be
recalled that Uruguay has repeatedly indicated that the suitability of the Fray Bentos location was
comprehensively assessed and that other possible sites were considered. The Court further notes
that the IFC’s Final Cumulative Impact Study of September 2006 (hereinafter “CIS”) shows that in
2003 Botnia evaluated four locations in total at La Paloma, at Paso de los Toros, at Nueva Palmira,
and at Fray Bentos, before choosing Fray Bent os. The evaluations concluded that the limited
amount of fresh water in La Paloma and its importa nce as a habitat for birds rendered it unsuitable,
while for Nueva Palmira its consideration was discouraged by its proximity to residential,
recreational, and culturally important areas, and with respect to Paso de los Toros insufficient flow
of water during the dry season and potential conflict with competing water uses, as well as a lack of
infrastructure, led to its exclusion. Consequently, the Court is not convinced by Argentina’s
argument that an assessment of possible sites was not carried out prior to the determination of the
final site. - 20 -
The Court further notes that any decision on the actual location of such a plant along the
River Uruguay should take into account the capacity of the waters of the river to receive, dilute and
disperse discharges of effluent from a plant of this nature and scale.
The Court sees no need to go into a detailed examination of the scientific and technical
validity of the different kinds of modelling, calibration and validation undertaken by the Parties to
characterize the rate and direction of flow of the wa ters of the river in the relevant area. The Court
notes however that both Parties agree that rever se flows occur frequently and that phenomena of
low flow and stagnation may be observed in the concerned area, but that they disagree on the
implications of this for the discharges from the Orion (Botnia) mill into this area of the river.
The Court considers that in establishing its water quality standards in accordance with
Articles 36 and 56 of the 1975 Statute, CARU mu st have taken into account the receiving capacity
and sensitivity of the waters of the river, including in the areas of the river adjacent to Fray Bentos.
Consequently, in so far as it is not established that the discharges of effluent of the Orion (Botnia)
mill have exceeded the limits set by those standards, in terms of the level of concentrations, the
Court finds itself unable to conclude that Ur uguay has violated its obligations under the
1975 Statute.
Consultation of the affected populations (paras. 215-219)
The Court is of the view that no legal obligation to consult the affected populations arises for
the Parties from the instruments invoked by Ar gentina. In any case, it finds that such a
consultation by Uruguay did indeed take place.
Question of the production technology used in the Orion (Botnia) mill (paras. 220-228)
The Court observes that the obligation to prevent pollution and protect and preserve the
aquatic environment of the River Ur uguay, laid down in Article41(a) , and the exercise of due
diligence implied in it, entail a careful consideration of the technology to be used by the industrial
plant to be established, particularly in a sector such as pulp manufacturing, which often involves
the use or production of substances which have an im pact on the environment. This is all the more
important in view of the fact that Article41(a) provides that the regulatory framework to be
adopted by the Parties has to be in keep ing with the guidelines and recommendations of
international technical bodies.
The Court finds that, from the point of view of the technology employed, and based on the
documents submitted to it by the Parties, particularly the December2001 Integrated Pollution
Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper
Industry of the European Commission (hereinaft er “IPPC-BAT”), there is no evidence to support
the claim of Argentina that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges
of effluent for each tonne of pulp produced. This finding is supported by the fact that, as shown
below, no clear evidence has been presented by Argentina establishing that the Orion (Botnia) mill
is not in compliance with the 1975Statute, the CARU Digest and applicable regulations of the
Parties in terms of the concentration of effluent s per litre of wastewater discharged from the plant
and the absolute amount of effluents that can be discharged in a day.
The Court notes that, taking into account the data collected after the start-up of the mill as
contained in the various reports, it does not appear that the discharges from the Orion (Botnia) mill
have exceeded the limits set by the effluent standards prescribed by the relevant Uruguayan
regulation or the initial environmental author ization issued by MVOTMA (MVOTMA, Initial
Environmental Authorization for the Botnia Plant (14February 2005)), except for a few instances
in which the concentrations have exceeded the lim its. The only parameters for which a recorded - 21 -
measurement exceeded the standards set by D ecree No.253/79 or the initial environmental
authorization by MVOTMA are: nitrogen, nitrat es, and AOX (Adsorbable Organic Halogens). In
those cases, measurements taken on one day ex ceeded the threshold. However, the initial
environmental authorization of 14February2005 specifically allows yearly averaging for the
parameters. The most notable of these cases in wh ich the limits were exceeded is the one relating
to AOX, which is the parameter used internati onally to monitor pulp mill effluent, sometimes
including persistent organic pollutants (POPs). According to the IPPC-BAT document of the
European Commission submitted by the Parties, and considered by them as the industry standard in
this sector, “the environmental control authorities in many countries have set severe restrictions on
the discharges of chlorinated organics measu red as AOX into the aquatic environment”.
Concentrations of AOX reached at one point on 9 January 2008, after the mill began operations, as
high a level as 13 mg/L, whereas the maximum limit used in the environmental impact assessment
and subsequently prescribed by MVOTMA was 6mg /L. However, in the absence of convincing
evidence that this is not an isolated episode but rather a more enduring problem, the Court is not in
a position to conclude that Uruguay has breached the provisions of the 1975 Statute.
Impact of the discharges on the quality of the waters of the river (paras. 229-259)
The Court notes that it has before it interpretations of the data provided by experts appointed
by the Parties, and provided by the Parties themselves and their counsel. However, in assessing the
probative value of the evidence placed before it, th e Court will principally weigh and evaluate the
data, rather than the conflicting interpretations given to it by th e Parties or their experts and
consultants, in order to determine whether Uruguay breached its obligations under Articles36
and 41 of the 1975 Statute in authorizing the construction and operation of the Orion (Botnia) mill.
The Court observes that a post-operational average value of 3.8mg/L for dissolved oxygen
would indeed, if proven, constitute a violation of CARU standards, since it is below the minimum
value of 5.6mg of dissolved oxygen per litre required according to the CARU Digest (E3, title 2,
Chap.4, Sec.2). However, the Court finds that the allegation made by Argentina remains
unproven.
The Court finds that, based on the evidence be fore it, the Orion (Botnia) mill has so far
complied with the standard for total phosphorus in effluent discharge. The Court notes that the
amount of total phosphorus discharge into the river that may be attributed to the Orion (Botnia)
mill is insignificant in proportionate terms as comp ared to the overall total phosphorus in the river
from other sources. Consequently, the Court conclud es that the fact that the level of concentration
of total phosphorus in the river exceeds the limits established in Uruguayan legislation in respect of
water quality standards cannot be consider ed as a violation of Article 41 (a) of the 1975 Statute in
view of the river’s relatively high total phosphorus content prior to the commissioning of the plant,
and taking into account the action being taken by Uruguay by way of compensation.
The Court notes that it has not been established to its satisfaction that the algal bloom
episode of 4February 2009 to which Argentina re fers was caused by the nutrient discharges from
the Orion (Botnia) mill.
Based on the record, and the data presented by the Parties, the Court concludes that there is
insufficient evidence to attribute the alleged increase in the level of concentrations of phenolic
substances in the river to the operations of the Orion (Botnia) mill.
The Court recalls that the issue of nonylphenols was included in the record of the case before
the Court only by the Report submitted by Arge ntina on 30June2009. Although testing for
nonylphenols had been carried out since November 2008, Argentina has not however, in the view
of the Court, adduced clear evidence which estab lishes a link between the nonylphenols found in
the waters of the river and the Orion (Botnia) mill. Uruguay has also categorically denied before - 22 -
the Court the use of nonylphenolethoxylates for production or cleaning by the Orion (Botnia) mill.
The Court therefore concludes that the evidence in the record does not substantiate the claims made
by Argentina on this matter.
The Court considers that there is no clear evidence to link the incr ease in the presence of
dioxins and furans in the river to the operation of the Orion (Botnia) mill.
Effects on biodiversity (paras. 260-262)
The Court is of the opinion that as part of their obligation to preserve the aquatic
environment, the Parties have a duty to protect the fauna and flora of the river. The rules and
measures which they have to adopt under Article 41 should also reflect their international
undertakings in respect of biodiversity and habitat protection, in addition to the other standards on
water quality and discharges of effluent. The C ourt has not, however, found sufficient evidence to
conclude that Uruguay breached its obligation to preserve the aquatic environment including the
protection of its fauna and flora. The record ra ther shows that a clear relationship has not been
established between the discharges from the Orion (B otnia) mill and the malformations of rotifers,
or the dioxin found in the sábalo fish or the loss of fat by clams reported in the findings of
the Argentine River Uruguay Environmental Surveillance (URES) programme.
Air pollution (paras. 263-264)
As regards air pollution, the Court is of the view that if emissions from the plant’s stacks
have deposited into the aquatic environment substances with harmful effects, such indirect
pollution of the river would fall under the provisions of the 1975 Statute. Uruguay appears to agree
with this conclusion. Nevertheless, in view of the findings of the Court with respect to water
quality, it is the opinion of the Court that the record does not show any clear evidence that
substances with harmful effects have been introduced into the aquatic environment of the river
through the emissions of the Orion (Botnia) mill into the air.
Conclusions on Article 41 (para. 265)
Following a detailed examination of the Parti es’ arguments, the Court ultimately finds that
there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite
degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had
deleterious effects or caused harm to living resources or to the quality of the water or the ecological
balance of the river since it started its operations in November 2007. Consequently, on the basis of
the evidence submitted to it, the Court concludes that Uruguay has not breached its obligations
under Article 41.
Continuing obligations: monitoring (para. 266)
The Court is of the opinion that both Parties have the obligation to enable CARU, as the joint
machinery created by the 1975 Statute, to exercise on a continuous basis the powers conferred on it
by the 1975 Statute, including its function of monito ring the quality of the waters of the river and
of assessing the impact of the operation of the Orion (Botnia) mill on the aquatic environment.
Uruguay, for its part, has the obligation to continue monitoring the operation of the plant in
accordance with Article41 of the Statute and to ensure compliance by Botnia with Uruguayan
domestic regulations as well as the standards set by CARU. The Parties have a legal obligation
under the 1975 Statute to continue their co-operation through CARU and to enable it to devise the
necessary means to promote the equitable utilization of the river, while protecting its environment. - 23 -
6. The claims made by the Parties in their final submissions (paras. 267-281)
The Court considers that its finding of wr ongful conduct by Uruguay in respect of its
procedural obligations per se constitutes a measure of satisfaction for Argentina. As Uruguay’s
breaches of the procedural obligations occurred in th e past and have come to an end, there is no
cause to order their cessation.
The Court, not having before it a claim for reparation based on a régime of responsibility in
the absence of any wrongful act, deems it unnecessary to determine whether Articles 42 and 43 of
the 1975Statute establish such a régime. But it cannot be inferred from these articles, which
specifically concern instances of pollution, that thei r purpose or effect is to preclude all forms of
reparation other than compensation for breaches of procedural obligations under the 1975 Statute.
Examining Argentina’s claim that the Orion (Botnia) mill should be dismantled on the basis
of restitutio in integrum, the Court recalls that customary in ternational law provides for restitution
as one form of reparation for injury, restitution be ing the re-establishment of the situation which
existed before occurrence of the wrongful act. Th e Court further recalls that, where restitution is
materially impossible or involves a burden out of all proportion to the benefit deriving from it,
reparation takes the form of compensation or satisfaction, or even both.
The Court notes that like other forms of repa ration, restitution must be appropriate to the
injury suffered, taking into account the nature of the wrongful act having caused it.
As the Court has shown, the procedural obligations under the 1975 Statute did not entail any
ensuing prohibition on Uruguay’s building of the Orion (Botnia) mill, failing consent by Argentina,
after the expiration of the period for negotia tion. The Court has however observed that
construction of that mill began before negotiations had come to an end, in breach of the procedural
obligations laid down in the 1975Statute. Furt her, as the Court has fo und, on the evidence
submitted to it, the operation of the Orion (Botnia) mill has not resulted in the breach of substantive
obligations laid down in the 1975Statute. As Uruguay was not barred from proceeding with the
construction and operation of the Orion (Botnia) mill after the expiration of the period for
negotiation and as it breached no substantive obl igation under the 1975Statute, ordering the
dismantling of the mill would not, in the view of the Court, constitute an appropriate remedy for
the breach of procedural obligations.
As Uruguay has not breached substantive obligations arising under the 1975Statute, the
Court is likewise unable, for the same reasons , to uphold Argentina’s claim in respect of
compensation for alleged injuries suffered in vari ous economic sectors, specifically tourism and
agriculture.
Moreover, the Court fails to see any special circumstances in the present case requiring it to
adjudge and declare, as Argentina requests, that Uruguay must provide adequate guarantees that it
“will refrain in future from preventing the Statute of the River Uruguay of 1975 from being
applied, in particular the consultation procedure established by Chapter II of that Treaty”.
The Court further finds that Uruguay’s request for confirmation of its right “to continue
operating the Botnia plant in conformity with the provisions of the 1975Statute” is without any
practical significance, since Argentina’s claims in relation to breaches by Uruguay of its
substantive obligations and to the dismantling of the Orion (Botnia) mill have been rejected.
Lastly, the Court points out that the 1975Statute places the Parties under a duty to
co-operate with each other, on the terms therein set out, to ensure the achievement of its object and
purpose. This obligation to co-operate encomp asses ongoing monitoring of an industrial facility,
such as the Orion (Botnia) mill. In that regard the Court notes that the Parties have a long-standing
and effective tradition of co-operation and co-ordination through CARU. By acting jointly through - 24 -
CARU, the Parties have established a real community of interests and rights in the management of
the River Uruguay and in the protection of its environment.
7. Operative clause
For these reasons,
T HEC OURT ,
(1) By thirteen votes to one,
Finds that the Eastern Republic of Uruguay has breached its procedural obligations under
Articles 7 to 12 of the 1975 Statute of the River Uruguay and that the declaration by the Court of
this breach constitutes appropriate satisfaction;
IN FAVOUR : Vice-President Tomka, Acting President; Judges Koroma, Al-Khasawneh,
Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade,
Yusuf, Greenwood; Judgead hoc Vinuesa;
AGAINST : Judgead hoc Torres Bernárdez;
(2) By eleven votes to three,
Finds that the Eastern Republic of Uruguay has not breached its substantive obligations
under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay;
IN FAVOUR : Vice-President Tomka, Acting President ; Judges Koroma, Abraham, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood;
Judge ad hoc Torres Bernárdez;
AGAINST : JudgesAl-Khasawneh, Simma; Judgead hoc Vinuesa;
U(na)nimously,
Rejects all other submissions by the Parties.
Judges AL-K HASAWNEH and SIMMA append a joint dissenting opinion to the Judgment of the
Court; Judge KEITHappends a separate opinion to the Judgment of the Court; JudKOTNIKOV
appends a declaration to the Judgment of the Court; Judge CANÇADO TRINDADE appends a
separate opinion to the Judgment of the Court; Judge Y USUF appends a declaration to the
Judgment of the Court; JudgeG REENWOOD appends a separate opinion to the Judgment of the
Court; Judge ad hoc T ORRES B ERNÁRDEZ appends a separate opinion to the Judgment of the
Court; Judge ad hoc INUESA appends a dissenting opinion to the Judgment of the Court.
___________ Annex to Summary 2010/1
Joint dissenting opinion Judges Al-Khasawneh and Simma
Judges Al-Khasawneh and Simma begin their jo int dissenting opinion by highlighting their
concurrence with the Judgment of the Court in so far as Uruguay’s procedural obligations to inform
and to notify Argentina of the construction of the pulp mills are concerned. However, because they
consider that the Court has evaluated the scientific evidence brought before it by the Parties in a
methodologically flawed manner, they dissent on the finding by the Court that there has been no
breach of Uruguay’s substantive obligations under Articles 35, 36 and 41 of the 1975 Statute of the
River Uruguay.
Judges Al-Khasawneh and Simma emphasize the exceptionally fact-intensive nature of the
case, which for them raises serious questions as to the role that scientific evidence can play in
international judicial disputes. They consider that the traditional methods of evaluating evidence
are deficient in assessing the relevance of such comp lex, technical and scientific facts, and that in
the present case the assessment of scientific questions by experts is indispensable, as such experts
possess knowledge and expertise to evaluate the increasingly complex nature of the facts put before
courts such as the International Court of Justice. Judges Al-Khasawneh and Simma argue that the
Court on its own is not in a pos ition adequately to assess and weigh complex scientific evidence of
the type presented by the Parties. They disagree w ith the decision of the Court to adhere to its
traditional rules on the burden of proof and to oblig e Argentina to substantiate claims on issues
which they claim the Court cannot fully comprehend without recourse to expert assessment.
Judges Al-Khasawneh and Simma present two alternatives. Firstly, they argue that one route
for the Court, under Article62 of its Rules, would have been to call upon the Parties to produce
evidence or explanations that it considered n ecessary for understanding the matters in issue.
Secondly, they argue that the Court, under Article 50 of its Statute, could have entrusted an
individual, body, bureau, commission, or other organization with the task of carrying out an
enquiry or giving an expert opinion. Without expressing a preference for either of these options,
they consider that it w ould have behoved the Court to have ma de recourse to at least one of the
sources of external expertise which it is empowered to consult. In this regard,
Judges Al-Khasawneh and Simma point out that in both the Corfu Channel and Delimitation of the
Maritime Boundary in the Gulf of Maine Area cases, the Court exercised its powers under
Article 50 of the Statute and appointed technical expe rts to assist it in the resolution of the dispute
before it.
Next, the joint dissenting opinion turns to a summary review of recent scholarly criticism of
the Court’s practice of persisting, when faced with sophisticated scientific and technical evidence
in support of the legal claims made by States befo re it, in resolving these issues purely through the
application of its traditional legal techniques. Judges Al-Khasawneh and Simma conclude that, in a
scientific case such as the present dispute, the insights needed to make sound legal decisions
necessarily emanate from experts consulted by the Court; they emphasize that it remains for the
Court to discharge the exclusively judicial functi ons, such as the interpretation of legal terms, the
legal categorization of factual issues, and the assessment of the burden of proof.
Judges Al-Khasawneh and Simma claim that, so long as the Court persists in resolving
complex scientific disputes without recourse to ou tside expertise in an appropriate institutional
framework such as that offered under Article50 of the Statute, it willingly deprives itself of the
ability fully to consider the facts submitted to it and of several other advantages: the interaction
with experts in their capacity of experts and not as counsel; the advantage of giving the Parties a
voice in establishing the manner in which those expe rts would have been used; a chance for the
Parties to review the Court’s choice of experts (and for which subject-matter experts were needed);
and the chance for the Parties to comment on any expert conclusions emerging from that process. - 2 -
Judges Al-Khasawneh and Simma consider that the Court’s unstated practice, particularly in
boundary or maritime delimitation cases, of having recourse to internal experts without informing
the Parties, is especially unsatisfactory in dis putes with a complex scientific component. They
consider that adopting such a practice would deprive the Court of the above-mentioned advantages
of transparency, openness, procedural fairness, and the ability of the Parties to comment upon or
otherwise assist the Court in understanding the evidence before it. The joint dissenting opinion
emphasizes the overall duty of the Court to facilita te the production of evidence and to reach the
best representation of the essential facts in a case, in order best to resolve a dispute.
The joint dissenting opinion then surveys the Iron Rhine Railway and Arbitration between
Guyana and Suriname arbitral awards, and several decisions of the Appellate Body of the World
Trade Organization. Judges Al-Khasawneh and Simma observe in this regard that each of these
dispute-settlement bodies consulted experts in a co mprehensive manner at different points in their
work, and conclude accordingly that the Court should have considered pursuing a similar approach,
subject of course to the procedures laid out under its Statute. They regret that the Judgment in the
present case is a wasted opportunity for the Court to establish itself as a careful, systematic court
which can be entrusted with complex scientific evidence in the resolution of international disputes.
The joint dissenting opinion next turns to the qu estion of the jurisdiction of the Court in the
present case. Judges Al-Khasawneh and Simma consider that the 1975 Statute provides a dual role
for the Court: firstly, under its Article 60, to resolve disputes relating to interpreting and applying
rights and obligations under the Statute; and secondly, under its Article 12, as the Court acts as the
primary adjudicator on technical and/or scientific matters when the Parties cannot reach agreement.
The two judges consider that the latter function is qualitatively different from the role that was
embraced by the Court in the present case, especially in so far as the perspective of Article12 is
decisively forward-looking: here, the Court is to step in, before a project is realized, where there is
disagreement on whether there are potentially detrimental effects to the environment.
Judges Al-Khasawneh and Simma consider that the procedure of Article 12 implies that the Court
had to take a forward-looking, prospective approach, engage in a comprehensive risk assessment
and embrace a preventive rather than compensatory logic when determining what this risk might
entail. They also consider th at the Court’s proper discharge of its responsibilities under Article 12
would not only have facilitated the recourse to experts for which they earlier argued, but that it also
would have entrenched prospective, preventive reasoning at the institutional level in the assessment
of risks from the authorization process onwards, taking into account the often irreversible character
of damage to the environment.
Judges Al-Khasawneh and Simma conclude with a final observation as to the extreme
elasticity and generality of the substantive princi ples involved in the law relating to environmental
protection. They consider that in such a situation, respect for procedural obligations assumed by
States takes on additional importance and comes to th e forefront as being an essential indicator of
whether, in a concrete case, substantive obligations were or were not breached. For this reason,
Judges Al-Khasawneh and Simma consider that th e Court’s conclusion, whereby non-compliance
with the pertinent procedural obligations in the 1975Statute has eventually had no effect on
compliance with the substantive obligations also contained therein, is a proposition that cannot be
easily accepted. They argue that the Court’s r ecognition of a functional link between procedural
and substantive obligations laid down in the Statut e is insufficient, as the Court does not give full
weight to this interdependence.
Judges Al-Khasawneh and Simma reiterate, by way of conclusion, their regret that the Court
in the present case has missed what they consider a golden opport unity to demonstrate to the
international community its ability, and preparedn ess, to approach scientifically complex disputes
in a state-of-the-art manner. - 3 -
Separate opinion of Judge Keith
In his separate opinion Judge Keith, first, addresses certain aspects of the fact-finding
process in which the Court engaged in reaching its conclusion that Uruguay was not in breach of its
substantive obligations. He su mmarizes the technical and scientific evidence provided by each
Party in support of its pleadings, relating to the impact of the Botnia plant on the river, the
information provided by the Parties in a further exchange of documents following the two rounds
of written argument, and in the course of the hearing. He does that to empha size the extent in time
and space of the information, covering 50kilometres of the river and 30monitoring stations, its
quality and its consistency. That consistency may in general be seen in the data collected up and
downstream of the plant, before and after it be gan operating, and from Argentinian and Uruguayan
sources. He indicates why he does not consider there would have been any value, in the
circumstances of this case, for the Court to have ex ercised its power to order an enquiry or to seek
an expert opinion ⎯ actions which neither Party requested. He calls attention to statements made
by Argentina which support the Court’s evaluation of the extensive data put before it. Judge Keith
concludes this part of his opinion by highlighting the continuing obligation of Uruguay to prevent
pollution of the river in respect of the operation of the Botnia Plant.
In the second part of his opinion, relating to Uruguay’s procedural obligations, Judge Keith
states his agreement with the rulings of the Cour t (1) that Uruguay breached its obligation to notify
in proper time the plans for two plants, and (2) th at, once the negotiating period of 180 days ended
on 30 January 2006, Uruguay was not barred from authorizing the completion and operation of the
plants. He gives his reasons for concluding, contrary to the ruling made by the Court, that the
actions taken by Uruguay relating to each plant during that period did not breach its procedural
obligations. The reasons relate to the course of the negotiations, as they appear in the record before
the Court, and to the particular actions, three in total, taken by Uruguay in that period relating to
the two plants.
Declaration of Judge Skotnikov
JudgeSkotnikov has voted in favour of all the operative paragraphs of the Judgment.
However, he does not fully concur with the Court’ s interpretation of the 1975 Statute of the River
Uruguay.
He disagrees with the majority’s logic accord ing to which, after the end of the negotiation
period, Uruguay, rather than referring its dispute with Argentina to the Court in accordance with
Article 12 of the 1975 Statute, was free to proceed w ith the construction of the Botnia mill. In his
view, a “no construction obligation” clearly follows from the provisions of the Statute and from its
object and purpose.
The purpose of Articles 7 to 12 of the 1975Statute is to prevent unilateral action which is
not in conformity with the substantive provisions of the Statute, and thus to avoid causing injury to
the rights of each Party while protecting their shared watercourse. It is therefore only logical that,
if there is still no agreement after negotiations have run their course, the Party initiating the project
has the option of either abandoning it altogether or requesting the Court, in accordance with
Article12 of the 1975Statute, to resolve the disput e. Under this scheme of things, no injury is
inflicted on either Party’s rights and the shared watercourse remains protected.
By contrast, as follows from the interpretation contained in the Judgment, the Parties, when
concluding the 1975 Statute, must have agreed to allow such an injury to occur, with the possibility
of it later being rectified by a decision of the Court. The Parties cannot be presumed to have agreed
to such an arrangement, since it is incompatible with the object and purpose of the Statute of the
River Uruguay as defined in Article1 (“the opt imum and rational utilization of the River
Uruguay”). There is nothing “optimum and rational” about including in the Statute a possibility of - 4 -
causing damage to the river and incurring financial losses, first by constructing new channels and
other works (in violation of substantive obligations under the Statute) and then by destroying them.
In Judge Skotnikov’s view, Article12 of the 1975Statute establishes, on top of what is a
classical compromissory clause contained in Article 60, an obligation for each Party to resolve
disputes concerning activities mentioned in Article 7 by referral to the Court. This clearly follows
from the language of Article12: “[s]hould the Pa rties fail to reach agreement within 180days
following the notification referred to in article11, the procedure indicated in chapter XV [i.e.,
Article 60] shall be followed”.
In the Court’s interpretation, Article 12 is deprived of any meaning. There would be no need
for this article at all if its only purpose were toactivate Article 60, since the Parties could always
have direct recourse to the latter.
Judge Skotnikov concludes that Articles 7 to 12 of the Statute of the River Uruguay clearly
establish a procedural mechanism which includes no t only an obligation to inform, notify and, if
there are objections, to negotiate, but also an ob ligation for both Parties, should the negotiations
fail, to settle the dispute by referring it to the Court.
Separate opinion of Judge Cançado Trindade
1. In his separate opinion, composed of 16 parts, Judge Cançado Trindade begins by pointing
out that the identification itself of the applicable law in the cas d’espèce discloses the Court’s own
conception of the Law, and ineluctably leads to the consideration of the general theme of the
“sources” of law, of international law. Althoug h he accompanied the majority’s decision in its
findings on the basis of a strict valuation of the evidence produced before the Court, he regretted
not to be able to concur with parts of the Court’s reasoning, in particular its unfortunate
overlooking of the general principles of law.
2. He would have supported reliance to a much greater extent on those legal principles, as, in
his view, these latter (encompassing principles of in ternational environmental law), together with
the 1975Statute of the River Uruguay, conform the applicable law in the present case. He
pondered that his own personal positio n is in line with a current of international legal thinking,
sedimented along the last nine decades (1920-2010), which, ever since the mid-seventies, has
marked presence also in the domain of international environmental law.
3. JudgeCançadoTrindade recalls that, alrea dy in the origins of the legislative history of
Article38 of the PCIJ/ICJ Statute (in 1920), a nd in its subsequent developments (from 1945
onwards) there was a trend in legal doctrine ⎯ cultivated also in subsequent decades ⎯ that
sustained that the reference to “general principles of law” in that statutory provision was meant to
refer not only to those principles found in foro domestico , but likewise to those identified at
international law level. And these latter were not only those of general international law, but
encompassed likewise the principles which were prope r to a specific domain of international law,
such as international environmental law (Parts I-III).
4. Next (PartsIV-VI), JudgeCançadoTrinda de proceeds to a review of the recourse to
principles in the litigation before the ICJ, singling out relevant doctrinal developments on general
principles of law to the same effect. He adds that those principles (of domestic as well as
international law origin) are endowed with autonomy: the mens legis of the expression “general
principles of law”, as it appears in Article38(1)(c) of the ICJStatute, indicates that those
principles are not to be subsumed under custom or treaties: they constituted an autonomous - 5 -
“source”, encompassing principles of both substantive and procedural law. Furthermore, their
scope of application ratione materiae has in recent years been the object of attention of
contemporary international tribunals, and he believes that an important role is here to be played by
the ICJ, attentive as it ought to be to the role of general principles, of par ticular relevance in the
evolution of the expanding corpus juris of international law in our times.
5. The following Parts VII and VIII of his separate opinion turn attention to the principle of
prevention and the precautionary principle, proper to the domain of international environmental
law, and invoked and acknowledged in the present ca se by both contending Parties, Argentina and
Uruguay, which dwelt upon their formulation, cont ent and applicability. After examining the key
elements of risks, and scientific uncertainties, in the configuration of the precautionary principle,
JudgeCançadoTrindade singles out the ineluctabl e long-term dimension of the inter-generational
equity (Part IX), which, in his view, should also have been acknowledged in the present Judgment
of the Court. The last principle he draws attention to is that of sustainable development, also raised
by both Uruguay and Argentina (Part X), in line with the deep-rooted trad ition of Latin American
international legal thinking of being attentive to the role reserved to general principles of law.
6. Moving to the judicial determination of th e facts (PartXI), he would have preferred that
the Court’s decision would have referred to th e possibility open to it to obtain further evidence
motu proprio. He reviews the practice of the PCIJ/ICJ in the handling of evidence, and concludes
that, in the light of the Court’s own experience so far in the handling of conflicting evidence, in the
present case of the Pulp Mills not all the possibilities of fact-finding were exhausted. Questions
may thus be raised whether, if the Court would have made use of this additional possibility (e.g., by
means of in loco fact-finding) ⎯ as he thinks it should have ⎯ its conclusion as to substantive
obligations under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay may have been
different: any answer to this question would appear to him to be to a large extent conjectural.
7. The next set of JudgeCançadoTrindade’s considerations (PartXII) pertained to related
aspects of the present case, lying beyond the inter-State dimension, to which he attributes particular
importance, namely: (a)the imperatives of human health and the well-being of peoples; (bt )he role of
civil society in environmental protection; (c)the objective character of (environmental) obligations,
beyond reciprocity; and (d)the legal personality of the Admins itrative Commission of River Uruguay
(CARU). Attention to public heal th and the well-being of peoples ⎯ he recalls ⎯ was constantly
present throughout the recent cycle of United Natio ns World Conferences, and has been raised on
previous occasions before the ICJ itself.
8. The present case of the Pulp Mills , before becoming an inter-State case in October 2003, had
originally been brought to the attention of CARU, by the end of 2001, by an Argentine
non-governmental organization (NGO). In successive phases of the procedure of the present case,
NGOs and other entities of civi l society of both count ries, Argentina and Ur uguay, marked their
presence by means of their participation in relation to environmental impact assessment and
environmental monitoring. Both Uruguay and Argentina acknowledged the ineluctable partnership
between public power and entities of the civil so ciety when it came to matters of general public
interest, such as environmental protection. Th eir indications were that, in the handling of
environmental issues, States benefit from the contrb i ution of NGOs and other entities of civil society,
to the ultimate benefit of their populations.
9. JudgeCançadoTrindade further ar gues that, in domains of protection , such as that of the
environment, it is the objectivecharacter of obligations that ultimately matters. He is thus sceptical of
any alleged ontological distinction between those obligations (such as, e.g., those of conduct and of - 6 -
result). This again brings to thefore the relevance of general principels of law (e.g., that of good faith,
asserting the principle pacta sunt servanda ). In addition, the legal personality of CARU,
acknowledged by the Court itself, brought the present case beyond the strict inter-State dimension.
Although the implications inferredby Uruguay and Argentina, from such legal personality, were not
the same ⎯ it was beyond question that the 1975 Statute had established an institutional framework
for the fulfilment, thereunder, of the common interests of the States parties. There was a procedure,
laid down in Articles7 to12 of the 1975Statute, to be necessarily followed by the Parties; their
continued co-operation, through CARU, wa s intended to enable this latter⎯ as reckoned by the Court
itself⎯ to devise the appropriate means to promote th e equitable utilization of the River Uruguay,
while protecting its environment.
10. The last set of reflections on the part of JudgeCançadoTrindade pertained to interrelated
issues of juridical epistemology (Parts XIII-XVI), namely: (a) fundamental principles as substratumof
the legal order itself; (b)prima principiain their axiological dimension; and (c)general principles of
law as indicators of the status conscientiae of the international community. He contends that the
general principles of law have inspired not only the interpretation and the application of the legal
norms, but also the law-making process itself of their elaboration; they reflect the opinio juris, which,
in its turn, lies on the basis of the formation of Law. Such principles mark presence at both national
and international levels. There are fundamental principles of law which identify themselves with the
very foundations of the legal system, revealing thevalues and ultimate ends of the international legal
order and fulfilling the necessities of the international community.
11. Such principles are, in his view, an expression of an objective “idea of justice”, wherefrom
they secure the unity of Law, touchi ng on the foundations of the necessary law of nations. In his
perception, they emanate from human or juridical conscience, as the ultimate material source of all
Law. JudgeCançadoTrindade argues that, if th e observance of the precautionary principle, for
example, had prevailed all the time, in the attitude of the two contending Parties as well as in that of
the Court itself, that would have made a difference in the contentio us situation now settled by the
Court. The two States concerned would in al l probability not have reached their so-called
“understanding”, in the Ministerial Meeting of 2March2004, in a way circumventing the procedure
laid down in Articles7 to12 of the 1975Statute (i n particular Article7). And the Court, in turn,
would have reached a decision distinct from the one it took on 13July2006, and would have, in all
probability, ordered or indicated the requested provisional measures of protection (to be effective until
the present Judgment on the merits of the Pulp Mills case).
12. General principles of law indeed confer to the legal order (both national and
international)⎯ he adds ⎯ its ineluctable axiological dimension; they lie on the foundations of the
jus necessarium, and reveal the reveal the values which inspire the whole legal order. The
identification of the basic principles has accompanied pari passu the emergence and consolidation of
all the domains of law. Judge CançadoTrindade concludes that international environmental law
provides a good illustration in this respect, and could hardly be conceived nowadays without reference
to the principles of prevention, of precaution, and of sustainable development with its temporal
dimension, together with the long-term temporal dimension underlying inter-generational equity. In
his perception, the International Court of Justice,s the World Court, cannot overlook principles.
Declaration of Judge Yusuf
Judge Yusuf, who concurs in the Judgment, appends a declaration in which he expresses his
reservations regarding the manner in which the Court decided to handle the factual material
presented by the Parties. In his view, the Court should have had recourse to expert assistance, as - 7 -
provided in Article 50 of its Statute, to help it gain a more profound insight into the scientific and
technical intricacies of the evidence submitted by the Parties.
In the opinion of Judge Yusuf, the Court’s rec ourse to an enquiry or to an expert opinion in
the handling of the complex technical and scientif ic material submitted to it, far from undermining
its judicial function, could have assisted it to el ucidate the facts and to clarify the validity of the
methods used to establish the scientific data presented to it. Such recourse would not have affected
the role of the judge as the arbiter of fact, sin ce it is ultimately the responsibility of the Court to
decide on the relevance and significance of the results of the work of the experts.
Judge Yusuf concludes that, to avoid errors in the appreciation or determination of facts that
can substantially undermine the credibility of the Co urt, and to assure States appearing before the
Court that scientifically complex facts related to their cases are fully understood and appreciated by
the Court, it would serve the Court well in the fu ture to develop a clear strategy which would
enable it to assess the need for an expert opinion at an early stage of its deliberations on a case.
Separate opinion of Judge Greenwood
In his separate opinion, Judge Greenwood stat es that he agrees with the decision that
Uruguay has committed no breach of its substantive obligations under the Statute of the River
Uruguay and with the decision that Uruguay failed to comply with its procedural obligations under
Articles 7 to 12 of the Statute. He considers, however, that the breach of the procedural obligations
was more limited in scope than that found by the Court. In his opinion, the action authorized by
Uruguay with regard to the two mills during the period of negotiation were not sufficient to amount
to a violation of the obligation under Article 9 of the Statute or the obligation to negotiate in good
faith.
Judge Greenwood considers that the burden of proof was on Argentina to establish the facts
which it asserted on the balance of probabilities. He agrees with the methodology adopted by the
Court and with its conclusion that Argentina had fa iled to prove its case regarding breaches of the
substantive obligations. He adds that it is im portant that a party appearing before the Court
maintain a clear distinction between the functions of witnesses and experts, on the one hand, and
those of counsel, on the other. That is important both to assist the Court and to ensure that the right
of the other party to put questions to an expert or witness is properly respected. Someone who is
going to speak of facts within their own knowledge or offer their own opinion on scientific data
should not do so as counsel but should make the d eclaration required by Article 64 of the Rules of
Court and be subject to questioning.
Judge Greenwood concludes by drawing the atte ntion of the Parties to their continuing
obligations under the Statute.
Separate opinion of Judge ad hoc Torres Bernárdez
1. As is stated in the introduction to hi s separate opinion, JudgeTorresBernárdez endorses
many of the conclusions reached by the Court in its Judgment, notably those relating: to the
rejection of the Applicant’s claims that the R espondent breached substantive obligations under the
Statute of the River Uruguay; and to the dismantling of the Orion (Botnia) mill in Fray Bentos. He
also fully supports the conclusions in the Judgm ent in respect of the scope of the Court’s
jurisdiction and the applicable law, the burden of proof and expert evidence, the rejection of the
supposed “strict link” between the Statute’s procedural and substantive obligations, the rejection of
the alleged “no construction obligation” said to be borne by the Respondent between the end of
direct negotiations and the decision of the Court; and he agrees that satisfaction is appropriate
reparation for the breach of procedural obligations. - 8 -
2. However, JudgeTorresBernárdez does not agree with certain considerations evoked in
the Judgment relating to the Respondent’s breach, alleged by Argentina, of the Statute’s procedural
obligations, which form the basis of the majority’s finding on this point. He reaches very different
conclusions to those of the majority on this ma tter. Wishing to explain his reasons for voting
against point 1 of the Judgment’s operative clau se, Judge Torres Bernárdez focuses exclusively on
those issues in his separate opinion.
1. Preliminary considerations
3. Firstly, in his opinion, Judge Torres Bernárdez points out that an excessively “institutional
understanding” of CARU informs the Judgment and that, as a result, its reasoning gives a picture of
the Commission’s powers and of its role in the prior consultation process under Articles 7 to 12 of
the 1975 Statute of the River Ururguay with which he does not agree. He believes that this
understanding has affected the method of interpretation adopted by the majority, which has given
precedence to certain interpretative elements to the detriment of others that are equally applicable.
JudgeTorresBernárdez is of the opinion that th e general rule of interpretation codified in
Article31 of the Vienna Convention on the Law of Treaties is one integrated rule, with each
provision forming part of the whole. Granted, that rule incorporates the “relevant rules of
international law applicable in the relations betw een the parties”, but it has other components as
well, and the interpreter must weigh each of th ese in an interpretation process where the starting
point is to clarify the meaning of the text, not at the outset to ascertain the intent of the Parties.
4. In point of fact, the method of interpre tation adopted by the majority facilitates an
“evolutionary” interpretation of the provisions of the Statute of the River Uruguay.
JudgeTorresBernárdez approves of this in so fa r as the Statute’s rules relating to substantive
obligations are concerned. This is indicated by the wording of Article 41 of the Statute concerning
the obligation to protect and preserve the aquatic environment and to prevent the pollution of the
river water. Furthermore, both Parties in this case accept the irrefutable developments in
international environmental law over recent years.
5. On the other hand, JudgeTorresBernár dez does not believe that the methods of
interpretation leading to such an evolutionary conclusion are justified in this case in respect of the
Statute’s rules relating to procedural obligations . Neither the wording of these rules in their
context, nor subsequent agreements between the Pa rties, nor the practice of the Parties in their
interpretation and application of the treaty, woul d warrant the application of methods leading to
evolutionary interpretations. According to Judge TorresBernárdez, this affects the territorial
sovereignty of the State, i.e., an area where lim its on sovereignty are not to be presumed (see the
case concerning S.S. “Wimbledon”, P.C.I.J. Series A, No. 1, p. 24).
6. Moreover, Judge Torres Bernárdez points out that the language itself of Article7,
paragraph1, of the Statute introduces a preconditi on to the applicability of the rule: before
informing CARU, it is first necessary to determin e whether the project in question falls within the
scope of the obligation laid down by that provision of the Statute. Article7 leaves this initial
characterization to the Party planning the works, namely, the territorial sovereign, without
prejudice to the other Party’s right to dispute this initial characterization. In the present case, the
Applicant has affirmed its right to make the initia l characterization of its own projects and, on this
basis, its unwavering practice has been, according to the record, to build industrial plants without
informing CARU. Judge Torres Bernárdez believes that Argentina cannot deny that Uruguay had
the right initially to characterize the CMB (ENC E) project in October2003, because allegans
contraria non audiendus est. - 9 -
7. Judge Torres Bernárdez also states that the CARU minutes (for example, those concerning
the Transpapel project) offer a good illustration of how this question of the initial characterization
of planned works has been kept in mind in situations involving plans for national industrial plants
by one or other of the Parties on their respective banks of the river , and of how the reactions of
Commission members have been far from consistent. They even cross over. For example, the
initial characterization, in 2003, of the CMB (ENC E) project by Mr.Opperti, the Minister for
Foreign Affairs of Uruguay, appears to be in line with or very similar to that of the head of
Argentina’s delegation to CARU, Ambassador Carasales, for the Transpapel project.
8. Furthermore, Judge Torres Bernárdez reca lls that both Parties acknowledge: (1)that
CARU is without the power to approve the projects of which it is informed by the party planning
the works; and (2)that the rules of Article7, like all of the Statute’s other rules on the “prior
consultation” régime, do not constitute jus cogens and that, therefore, the Parties are free to agree
not to apply them in a given case.
2. Stage of the procedure at which Uruguay was obliged to inform CARU
about the work it was planning to carry out
9. According to the Judgment, the obligati on of the State planning activities specified in
Article7 of the Statute to inform CARU “will beco me applicable at the stage when the relevant
authority has had the project referred to it with the aim of obtaining initial environmental
authorization and before the granting of that authorization” (para.105). JudgeTorresBernárdez
does not agree because, in his opinion, the text of Article7, paragraph1, of the Statute does not
refer to such an early stage in the planning pro cess of the work. The majority’s finding may be
explained by its institutional understanding of CARU, already noted, and by the link that it makes
between the obligation to inform CARU and the principle of prevention, which, as a customary
rule, is part of the corpus of rules of contemporary international environmental law.
10. However, Judge Torres Bernárdez believes that the majority by so finding has introduced
limitations on the State’s territorial sovereignty during the planning phase of an industrial project
which go beyond those which are explicit in Article 7 of the Statute or by necessity underlie the
text. According to JudgeTorres Bernárdez, the majority is attr ibuting a shared “evolutionary”
intent to the Parties on this point, of which there is no evidence at all either in Article 7, or in any of
the other procedural rules making up the “prior consultation” régime of the 1975 Statute, that is to
say, that this is based on a presumption. However, as has been shown, limitations on a State’s
territorial sovereignty are not to be presumed.
11. JudgeTorresBernárdez believes that the adoption of methods characteristic of
“evolutionary” interpretation is not justified in the present context because the wording of the
provisions laying down the “prior consultation” régime of the 1975 Statute, including therefore
Article 7, does not directly or indirectly permit the interpreter to do so. In fact, by adopting such
methods, the Judgment’s recourse to the “relevant rules of international law applicable in the
relations between the parties” (Art.31, para.3(c) of the Vienna Convention on the Law of
Treaties) is not aimed at determining the stage or point at which the territorial State is obliged to
inform CARU pursuant to Article 7, paragraph 1, of the Statute, but at determining the best time to
inform CARU from the point of view of applying the customary principle of prevention under
international environmental law, therefore assigning to the treaty provision, the subject of the
interpretation, the role of satisfying the requireme nts of the application of the customary principle
of prevention. The result, according to Judge Torres Bernárdez, is that the text, the context and the
subsequent agreements or practice become trivial elements in the interpretation process of Article 7
of the Statute. Furthermore, JudgeTorresBern árdez strongly fears that the decided outcome will - 10 -
become an additional source of difficulty for one or both of the Parties in the future because it does
not correspond to the practice they have followed to date.
12. For example, Judge Torres Bernárdez points out that, under Uruguayan law, the fact that
a request for initial environmental authorization is submitted by a third party, or that DINAMA
considers that request, or even makes a favourab le recommendation to the higher authorities, does
not mean that the planned activity in question can be described at any stage in this process as
aplanned activity of the Uruguayan State . Throughout this whole process, the State has not
approved anything and, as a result, it cannot be said that “Uruguay is planning to carry out the
works”, as Article 7, paragraph 1, of the Statute re quires. It is only after the initial environmental
authorization (AAP) required by Uruguayan law has been issued, that the Uruguayan State can be
said to have agreed to the project and then only in respect of its environmental viability . Indeed,
under Uruguayan law, AAPs do not authorize construction activities of any sort; the holder of an
AAP only has the right to request a construction authorization or permit.
13. Judge Torres Bernárdez also does not think it a good idea to specify, as the Judgment
does, the stage at which CARU must be informed by reference to the provisions or rules of the law
of the State concerned, since this subordinates the operation of the obligation under international
law to inform CARU to the national law of one or other of the Parties. This may have the
regrettable result of one party being obliged to inform CARU of its plans earlier than the other.
JudgeTorresBernárdez does not believe that such in tent can be attributed to the drafters of the
1975 Statute of the River Uruguay.
14. Judge Torres Bernárdez believes it is clear from the wording of Article 7, paragraph 1, of
the Statute that the obligation to inform CARU is tied to the “carrying out” of the planned works,
because the authentic Spanish text is unambiguous in this respect. That the State is only planning
the works is not sufficient. According to the text of the provision, the State must also be “planning
the carrying out of the work”, because it is only during the carrying out of the work that activities
or works of a physical nature relating thereto could affect navigation, the régime of the river or the
quality of its waters and thereby cause significant damage to the other State, as the river is a shared
natural resource. The mere granting by a public administrative body of an “authorization” is not an
activity or an act likely to cause such effect s. According to JudgeTorres Bernárdez, the
interpretative elements which define the genera l rule of interpretation under Article31 of the
Vienna Convention, as they are present in this case, do not confirm the position that— for the
purposes of Article7, paragraph1, of the Statute— informing CARU must precede “any
authorization”, such as, for example, an AAP under Uruguayan law.
15. In light of the preceding considerations, Judge Torres Bernárdez is of the opinion that the
interpreter should resolve this issue by looking to the rule of general international law stating that,
where the text is silent, the obliga tion to inform or to notify must be satisfied “timely” (“en temps
utile”) or “in a timely manner” (“opportun”), that is to say, before the project is so far advanced in
its construction that any assessment of the potential damage from the industrial facility would come
too late to offer any remedy, which would undoubtedly be contrary to Article 7, paragraph 1, of the
Statute. In the Judge’s opinion, this would requi re the State making the communication to have, at
the time of informing or notifying, solid technical data on the main aspects of the work.
16. In any case, JudgeTorresBernárdez belie ves that, at the date of conclusion of the
2March 2004 and 5May2005 ag reements, which will be examined below, the period for
informing CARU timely or in a timely manner about the implementation of the CMB (ENCE) mill
and Orion (Botnia) mill projects had not yet expired: Uruguay still had the opportunity to do this in - 11 -
a timely or appropriate manner for the purposes of the aims to be achieved through the information
process. Therefore, at the date of conclusion of its agreements, Uruguay could not have breached
the obligation to inform CARU under Article 7, para graph 1, of the Statute, because “[a]n act of a
State does not constitute a breach of an interna tional obligation unless the State is bound by the
obligation in question at the time the act occurs” (Article13, Articles on Responsibility of States
for Internationally Wrongful Acts).
17. Judge Torres Bernárdez is therefore of the opinion that there was no “wrongful delay” by
Uruguay in respect of the obligation to inform CARU before concluding the above-mentioned
subsequent agreements. He also adds that the two Parties are agreed that the acts amounting to any
procedural breaches involving Articles7 to12 of the Statute are to be categorized as being
“instantaneous” in nature.
3. The scope and content of the agreements made by the Parties
on 2 March 2004 and 5 May 2005
18. The opinion notes that in the cases of both ENCE and Botnia, the Parties jointly decided
to dispense with the preliminary review by CARU provided for in Article7 of the Statute of the
River Uruguay and to proceed immediately to direct negotiations, as referred to in Article12.
Furthermore, in both cases, it was Argentina whic h sought direct consultations with Uruguay at
times when CARU did not offer a viable framework, either because the Commission had halted its
sessions, or because it was deadlocked. This is by no means surprising given that when the Parties
fail to agree within CARU on the impact of the planned works on the ecosystem of the River
Uruguay, the matter “leaves the orbit of competence of the Commission and is turned over to be
considered at the level of the Governments” (pr esentation by the Argentine Minister for Foreign
Affairs, Mr. Taiana, to the Foreign Affairs Co mmission of the Argentine Chamber of Deputies on
14 February 2006).
19. Furthermore, as the rules laid out in Articles7 to12 of the Statute are not peremptory
norms (jus cogens), there was nothing to prevent the Parti es from agreeing to proceed immediately
to direct consultation or negotiati ons without having to adhere to the procedures under the Statute.
In JudgeTorresBernárdez’s opinion, this is precisely what the Parties did, first with the
understanding reached by the Ministers for Fo reign Affairs on 2Marc h 2004 (Bielsa-Opperti
agreement), and later with the agreemen t concluded by the Presidents on 5May2005
(Vázquez-Kirchner agreement establishing the GT AN); the effects of these agreements in
establishing an exception are fully accepted in the opinion. This is the basis of
Judge Torres Bernárdez’s difference of opinion with the majority because, despite acknowledging,
in paragraphs 128 and 138, that the agreements in question are binding on the Parties since they
have consented to them, the Judgment rejects that in the present case their effect is to depart from
the Statute’s régime.
(a) The 2 March 2004 understanding between the Ministers for Foreign Affairs
20. On 9 October 2003, MVOTMA granted an initial environmental authorization (AAP) to
ENCE for the “Celulosas de M’Bopicuá S.A.” (CMB) pulp mill on the Uruguayan bank of the
River Uruguay at Fray Bentos, near the “General San Martín” international bridge, and opposite the
Argentine region of Gualeguaychú, where the p opulation had demonstrated against the mill.
Argentina deemed this a breach of Article7 of the Statute of the River Uruguay and protested
against the granting of the AAP in question to ENCE, notably by ceasing to attend CARU
meetings, a situation which continued until the conclusion of the 2 March 2004 agreement. - 12 -
21. In this respect, Judge Torres Bernárdez point s out that, in spite of the situation within
CARU, the Parties continued their discussions about the CMB (ENCE) project at a higher level —
through ministers or Ministers for Foreign Affairs — and that Argentina received from Uruguay all
of the information relating to the project just a few days after the granting of the AAP to ENCE,
namely, on 27October and 9November2003. Th is information allowed Argentina’s technical
advisers to study the CMB (ENCE) project and to produce a report for their authorities
inFebruary 2004, in which they concluded that there was no significant environmental impact on
the Argentine side of the river, somethi ng which was acknowledged in certain Argentine
documents, as well as by Argentina’s own delegat es to CARU. In Judge Torres Bernárdez’s view,
this report reassured Argentina about the possible effects of building the disputed mill, thus
opening the way to further meetings of the Par ties and, eventually, to the conclusion of the
Bielsa-Opperti agreement on 2 March 2004.
22. Argentina has argued in these proceedings that the 2March2004 agreement did not
render Article 7 of the Statute of the River Uruguay in applicable in this case. However, statements
made to the press by the Ministers for Forei gn Affairs, drafts exchanged by ambassadors
Mr.Sguiglia (Argentina) and Mr.Sader (Uruguay) with a view to committi ng the ministers’ oral
agreement to writing, even the language of th e agreement recorded in the minutes of CARU’s
meeting on 15 May 2004, as well as other pieces of documentary evidence from official Argentine
sources, have convinced Judge Torres Bernárdez to the contrary.
23. In his view, these various factors tip the balance resolutely in favour of Ururguay’s
version of the facts as presented in its written plead ings and during the oral phase, that is, that the
Ministers for Foreign Affairs agreed that the CMB (ENCE) pulp mill would be built in Fray Bentos
on the condition: (1)that CARU maintained a cer tain level of control over technical aspects, as
described in the agreement, relating to the construction of the mill (which is in no way connected to
the preliminary review under Article 7, paragraph 1, of the Statute); and (2) that, once the mill had
entered operation, a system would be establishe d for CARU’s monitoring of the quality of the
river’s waters throughout the area of the mill site . The “planning” phase for the mill, to which the
obligation to inform CARU relates under Artic le7 of the Statute, occurred before the
Bielsa-Opperti agreement, which looked ahead to the future, that is, to the “construction” and
“commissioning” phases of the mill.
24. The wording of the Bielsa-Opperti agreement was ratified in the minutes of CARU’s
extraordinary meeting on 15 May 2004 (first mee ting of the Commission since October 2003) and
duly authenticated by the signatures of the head of the Argentine delegation to CARU,
Mr. Roberto García Moritán, and the head of th e Uruguayan delegation, Mr. Walter M. Belvisi, as
well as by that of CARU’s Administrative Secretary, MrS . ergChave. However,
JudgeTorresBernárdez cannot find a single passage, nor even a single word, in these minutes to
support the contention that the Bielsa-Opperti agre ement implied a return to the Commission for
the purposes of Article 7, paragraph 1, of the Statute.
25. It is JudgeTorresBernárdez’s belief that the text of these minutes proves the exact
opposite. Indeed, in Point I of the Specific Agreed-Upon Matters, it is stated that CARU shall
receive and consider, taking into account the terms included in MVOTMA’s Ministerial
resolution342/2003 of 9October2003 granting the AAP for the CMB project to ENCE, the
Environmental Management Plans for the constr uction and operation of the mill provided by the
company to the Uruguayan Government, as soon as the latter has communicated them, as well as
the actions requiring additional implementation an d assessment by the company before they are
approved, while “formulating its observations , comments and suggestions, which shall be
transmitted to Uruguay, to be dismissed or decided with the company”. Moreover, in respect of the - 13 -
operational phase mentioned in PointII of the Sp ecific Agreed-Upon Matters, the text states that
monitoring of the environmental quality shall be ca rried out in conformity with the provisions of
the Statute of the River Uruguay, especially Chapter X, Articles 40 to 43, and that both delegations
agree that, in view of the scope of the undertak ing and its possible effects, CARU shall adopt
procedures in accordance with the minutes.
26. In his opinion, Judge Torres Bernárdez points out that the relevant extract of the minutes
from 15 May 2004 concludes with the decision by the Commission to carry out the content of the
agreement reached on 2March2004 between Minister sBielsa andOpperti in its entirety, an
agreement which, as was acknowledged at the time by the President of the Argentine delegation to
CARU, Mr.Moritán, served as “an important limiti ng factor in our position” on the procedure
provided for in Article7 of the Statute. Judge TorresBernárdez believes that the content of the
statements of those involved shows that no-one was any longer expecting CARU to exercise the
general powers conferred on it under Articles 7 to 18 of the Statute in respect of the CMB (ENCE)
plant, rather that it would carry out only certain tasks agreed on in the Bielsa-Opperti agreement.
In his separate opinion, Judge Torres Bernárdez also cites passages from certain official Argentine
documents from that time which, he thinks, c onfirm the scope of the 2March2004 agreement,
notably: (1) a statement from the Ar gentine Ministry of Foreign Affairs in a report on 2004 to the
Senate; (2) a statement from the Argentine Ministry of Foreign Affairs in a report on 2004 to the
Chamber of Deputies; and (3)a statement in the 2004 Annual Report on the State of the Nation,
prepared by the Office of Argentina’s President.
27. In these last two documents, it is expressly stated that the bilateral agreement of
2March2004 put an end to the dispute over the construction of a pulp mill in Fray Bentos. It
therefore follows from these documents that the Bielsa-Opperti agreement established a substitute
procedure for that of the Statute. It also follows that this procedure was later extended to Orion
(Botnia) because, in some of these documents, ther e is mention of “two plants” or “the possible
installation of pulp mill plants on the Uruguay rive r bank”. Furthermore, Judge Torres Bernárdez
points out that, when the GTAN was created, the joint press release of 31 March 2005 also referred
to “pulp mill plants” being built in the Eastern Republic of Uruguay. CARU and its
Sub-committee on Water Quality and Pollution Contro l did the same: the full title of PROCEL is
“Plan for Monitoring Water Quality of the River Uruguay in the Area of the Pulp Mills”.
28. Judge Torres Bernárdez therefore disagrees with the findings in paragraphs 129 and 131
of the Judgment, whereby the Court — although acknowledging that the understanding of 2 March
2004 is undoubtedly a procedure replacing that unde r the Statute— concludes: (1)that it cannot
accept Uruguay’s contention that the understanding put an end to its dispute with Argentina in
respect of the CMB (ENCE) mill concerning the implementation of the procedure laid down by
Article7 of the Statute, because the information— which Uruguay was obliged under the
Bielsa-Opperti understanding to transmit to CARU — was never transmitted; and (2) that it cannot
accept Uruguay’s contention that the scope of the understanding was later extended by the Parties
to the Orion (Botnia) project, because reference to “the two mills” is made only as from July 2004
in the context of the PROCEL plan, which concerns the measures to monitor the environmental
quality of the river waters, not the procedures under Article 7 of the Statute.
29. As far as the findings of the majority of the Court on Uruguay’s “non-performance” of
the 2March 2004 understanding are concerned, J udgeTorresBernárdez recalls that Uruguay was
fully involved, as was Argentina, in drawing up the PROCEL within CARU, a plan which was
definitively adopted by the Commission on 12 November 2004 and which was carried out until the
withdrawal of the Argentine delegates. As for the failure to transmit the technical information
relating to the construction of the CMB (ENCE) mill, Uruguay never had the chance to do so - 14 -
because the mill was not built. The only PGA (Env ironmental Management Plan) in existence for
this mill concerned the “removal of vegetation a nd earth movement” of 28 November 2005. There
were no others in relation to the construction of th is mill, eventually abandoned by ENCE, in Fray
Bentos. As far as Orion (Botnia) is concerned, construction work for the mill on the site was only
authorized on 18 January 2006 and unfolded after the official end of direct negotiations within the
GTAN, which the Judgment fixes at 3Februa ry2006 (para.157). Furthermore, Uruguay
transmitted to CARU by facsimile on 6December2006 “the text of the public file for the Kraft
cellulose plant project, application for initial environmental authorization filed by BotniaS.A.”,
that is, with the grant by MVOTMA of the AAP to Botnia on 14 February 2005. In light of these
facts, JudgeTorresBernárdez believes that th e 2March2004 understanding was performed as far
as it was physically possible to do so (impossibilium nulla obligatio est).
30. As far as the majority’s finding on the applicability of the 2 March 2004 understanding to
the “two mills” is concerned, JudgeTorresBernár dez points out that references may be found to
them not only in CARU documents on PROCEL, but also in other documents in the record. It
should not be forgotten that Argentina knew a bout the Botnia project at the latest by
November 2003, when its official representatives met representatives of the company, and CARU
itself was aware of it at the latest by April 2004, when it first met representatives of the company.
(b) The Presidents’ agreement of 5 May 2005 establishing the GTAN
31. The granting by the outgoing Uruguayan Government of the AAP for the Orion (Botnia)
mill project on 14February2005— on which date the Bielsa-Opperti understanding of
2 March 2004 was still in force between the Parties — gave rise to a new dispute within CARU in a
political context of growing opposition to the cons truction of the two mills among the inhabitants
of the Argentine province Entre Ríos. Mass demonstrations had taken place and international roads
and bridges over the River Uruguay had been blockaded, notably the “General San Martín” bridge,
which was closed to traffic as a result of the actions promoted by the “asambleistas” movement of
Gualeguaychú. Furthermore, on 1March2005 a new Uruguayan Government took office
following the inauguration of President Tabaré Vázquez. These events led the Governments of the
two countries to look directly into the matter of establishing a high-level technical group (GTAN).
32. In his opinion, JudgeTorresBernárdez recalls that it was Argentina which, once again,
took the initiative to suggest that the issue of the paper pulp mills be handled by the two
Governments outside CARU. It was in fact the Argentine Minister Mr. Bielsa who suggested in a
letter of 5May 2005 to the Uruguayan Minister Mr .Gargano that the situation called for “a more
direct intervention of the competent environmental authorities, with the co-operation of specialized
academic institutions” although “without prejudi ce of the water quality control and monitoring
procedures by CARU”. This letter from Mini sterBielsa also conveyed to his Uruguayan
counterpart the requests made by the government of EntreRíos, including on the issue of the
location of the plants.
33. The text of the agreement between Pr esidents Tabaré Vázquez and Néstor Kirchner
establishing the GTAN was the subject of an Argentine-Uruguayan press release dated
31May 2005, which is quoted in paragraph132 of th e Judgment. In light of this text, and of the
letter from Mr. Bielsa to Mr. Gargano, Judge Torres Bernárdez believes that there can be no doubt
that the Parties agreed between themselves to dispense with the procedures set out in Articles7
to11 of the Statute in favour of immediate “d irect negotiations” within the GTAN: negotiations
provided for in Article12 of the Statute, as Argentina expressly stated in paragraph4 of its
Application instituting these proceedings and in its diplomatic note of 14 December 2005 recording
the failure of direct negotiations through the GTAN. - 15 -
34. According to JudgeTorresBernárdez, it follows from the Presidents’ agreement of
5May 2005 that there was no question, at that da te, of reconsidering the procedure agreed to on
2 March 2004 for CMB (ENCE) and later extended to Orion (Botnia). This conclusion is based on
the fact that the points which were still outsta nding and supposed to be examined by the Parties
within the GTAN concerned solely— according to the Presidents’ agreement— complementary
studies and analysis, exchange of information and follow-up on the effects that the operation of
the paper pulp mills (the two mills) being constructed in the Eastern Republic of Uruguay would
have on the ecosystem of the shared river. The issue was no longer the planning or construction of
the mills in question but the future, namely, the effects of those mills’ operations on the river’s
ecosystem.
35. Judge Torres Bernárdez agrees with the J udgment that the press release of 31 May 2005
manifests an agreement between the two States to create a negotiating framework, the GTAN, with
the aim of allowing for the negotiations provided for in Article 12 of the Statute to take place. But,
to his mind, the press release is only that. He believes that what is of particular note in the press
release is the fact that is does not call into doubt the Bielsa-Opperti agreement of 2 March 2004, an
agreement which was still in force at the date of conclusion of the Presidents’ agreement of
5 May 2005. Thus, the 31 May 2005 press release confirms, in Judge Torres Bernárdez’s opinion,
the existence and scope of the 2March2004 agreement. In other words, by concluding the
May 2005 agreement, Uruguay did not waive its rights under the March 2004 agreement.
36. Judge Torres Bernárdez finds that, in light of the facts, the interpretation is not tenable
according to which the May 2005 agreement granted Argentina considerable rights of supervision
over the mills (rights far greater than what is provi ded in the relevant articles of the 1975 Statute),
without it giving anything in exchange. Nor does the letter from MinisterBielsa of 5May2005,
which, by virtue of its content, constitutes part of the “travaux préparatoires” of the Presidents’
agreement, confirm the findings in the Judgment on this matter. Judge Torres Bernárdez therefore
completely disagrees with the majority’s findings in paragraphs 140 and 141 of the Judgment. For
him, pacta sunt servanda , with its associated good faith, does of course govern the relations
between the Parties in respect of the interpretati on of the application of the provisions of the 1975
Statute, but also the subsequent agreements of 2 March 2004 and 5 May 2005.
37. Judge Torres Bernárdez also fails to shar e the majority’s conclusion in paragraph 142 of
the Judgment that the press release of 31May2005 in referring to “the cellulose plants that are
being constructed in the Eastern Republic of Uruguay” is stating a simple fact. He believes that,
although this does indeed state a fact, it is a fact that reflects a legal relationship between t
he
Parties deriving from both the 1975 Statute and the understanding of 2 March 2004, as well as from
the Presidents’ agreement of 5 May 2005.
(c) The procedure for the pulp mills in Fray Bentos established by the agreements
38. In paragraphs 77 to 88 of his separ ate opinion, Judge Torres Bernárdez describes the
salient features of the replacement procedure agreed to by the Parties to deal with the issue of the
pulp mills on the Uruguayan bank of the River Urugua y at Fray Bentos, a procedure against which
the Parties’ conduct must be measured in the present case. This adhoc procedure retained the
régime of direct negotiations and the judicial settlement procedure, but dispensed with the
procedural arrangements provided for in Articles 7 to 11 of the 1975 Statute. In these paragraphs,
JudgeTorresBernárdez points out, on the one hand, that the procedure adopted by the Parties in
this case gave far more substantial powers to CARU than the Statute does and, on the other hand,
that the procedure adopted was more favourable to the protection of Argentina’s interests than are
the provisions of Articles7 to11 of the Statute on a significant number of issues (level of - 16 -
consultations; extension of consultations to the construction and operational phases; extent of the
information received; evaluation of the data in co -operation with the other Party; extension of the
statutory time-limits). The Judge also points out that neither of the Parties asked CARU to resolve
their dispute by means of conciliation.
4. Uruguay’s obligations during the period of direct negotiations
39. On the matter of establishing whether Uruguay’s conduct during the period of direct
negotiations within the GTAN was in accordance with its legal obligations to Argentina, in light of
the scope of the principle of the obligation to negotiate, Judge Torres Bernárdez is in no doubt that
there is such an obligation under international la w and that, given its significance in international
relations, the Court must be exacting in ensuring that it is met, because reciprocal trust is an
inherent condition of international co-operation. However, Judge Torres Bernárdez does not agree
with the way in which the majority has applied it to the circumstances of the present case in respect
of the “no construction obligation” during the period of direct negotiations. His disagreement
extends to both the temporal and substantive scope of the obligation.
40. In the context of the GTAN, Uruguay was obliged — as indeed was Argentina — to take
part in good faith and with an open mind, so as to ensure that the negotiations were meaningful,
and to be willing to take reasonable account of the other Party’s views, without however being
obliged to reach an agreement because, under international law, a commitment to negotiate does
not imply an obligation to agree. The GTAN was to produce a report within 180 days: GTAN
having begun its work on 3 August 2005, in princi ple Uruguay would have been obliged to comply
with the “no construction obligation” until th e end of the GTAN negotiations, fixed in the
Judgment at 3 February 2006.
41. Yet, in the light of the evidence su bmitted to the Court, JudgeTorresBernárdez
considers that 3February2006 was merely the official end of negotiations: according to this
evidence, negotiations had reached a deadlock long before this date. In such circumstances,
JudgeTorresBernárdez believes it contrary to th e sound administration of justice to oblige the
Parties to wait until the official time-limit has el apsed before they are freed of the obligation,
because a State cannot be required to take an acti on which is clearly futile and pointless, or which
has already proved to be in vain (see on this subject: the separate opinion of JudgeTanaka in
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase,
Judgment, I.C.J. Reports 1970, p. 145). To Judge Torres Bernárdez’s mind, Argentina’s diplomatic
notes of 14December2005, 26December2005 and 12January2006, part of the record, confirm
the deadlock at which the GTAN process had arrived towards the end of November 2005.
42. For Judge Torres Bernárdez, the diplomatic note of 14 December 2005 is decisive in this
respect because, in this official note, the Ar gentine Republic notified the Eastern Republic of
Uruguay of its “conclusion”, specifically: (1)that, in accordance with the terms of Article12 of
the Statute of the River Uruguay, since direct negotiations between the Parties within the GTAN
had not produced an agreement, the procedure pr ovided for in ChapterXV of the Statute of the
River Uruguay (judicial settlement) had become a pplicable; (2)that a dispute concerning the
interpretation and application of the Statute of the River Uruguay had arisen; and (3) that the direct
negotiations referred to in Article60 of the St atute concerning the dispute arising from the
unilateral authorizations for the construction of th e industrial plants in question (CMB and Orion)
had been underway since 3August2005 (date of the first GTAN meeting). According to
Judge Torres Bernárdez, the date to be used in determining the end of Uruguay’s “no construction
obligation” in this case is thus the date of Argentina’s diplomatic note of 14 December 2005. - 17 -
43. Moreover, Argentina’s diplomatic note of 14 December 2005 states that in relation to the
dispute arising from the unilateral authorization of th e Botnia port, made official by virtue of the
CARU minutes from 14October2005 (also mentioned in the note from the President of the
Argentine delegation to the Uruguayan pa rty presented at the CARU meeting of
17 November 2005), direct negotiations began “today”, i.e., 14December2005 . This was
confirmed by Argentina’s Minister for Foreign Affa irs, Mr. Taiana, on 12 February 2006, before
the Foreign Affairs Committee of the Argentine Chamber of Deputies, where he explained that:
“in relation with the port construction project, the purpose of the note [of
14 December 2005] was to determine [that] the day of presentation to Uruguay would
be the start date from which to compute the period in which to carry out direct
negotiations” (Argentina’s Application instituting proceedings, Ann. III, p. 17).
44. JudgeTorresBernárdez also disagrees with the majority’s findings in the Judgment on
the substantive scope of the obligation because, first, no distinction is made therein between “the
administrative acts granting environmental aut horization of a work” and “the construction
authorizations or plans for the work itself” and, second, nor is there any distinction drawn between
activities or work of “a preparatory character” to the work and the “construction” of the work,
prohibited pursuant to the obligation. Judge Torr es Bernárdez is particularly disappointed that the
sound legal rule on the subject which the Court identified in the case concerning
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) was not applied to the present case: as the
Court stated at the time:
“A wrongful act or offence is frequently preceded by preparatory actions which
are not to be confused with the act or offence itself. It is as well to distinguish
between the actual commission of a wrongful act (whether instantaneous or
continuous) and the conduct prior to that act which is of a preparatory character and
which ‘does not qualify as a wrongful act’.” (Judgment, ICJ Reports 1997 , p.54,
para. 79.)
45. JudgeTorresBernárdez is of the belief that the actions of Uruguay condemned in the
Judgment— relating to the CMB (ENCE) and Orion (Botnia) projects— are of a “preparatory”
character, as opposed to the actual construction work itself for the mills and that they fall outside
the substantive scope of Uruguay’s “no constr uction obligation” during the GTAN negotiation
period. Only the PGA (Environmental Management Plan) entitled “Plan de Gestion Ambiental de
las Obras Civiles Terrestres Planta de Celulo sa Botnia Fray Bentos PGAV Version”, dated
18January2006, would, in principle, fall within this scope. But, since this plan postdates
Argentina’s diplomatic note of 14 December 2005, it does not lie within the temporal ambit of the
“no construction obligation” (see paragraph 25 above).
46. The only remaining issue is thus the authori zation for the construction of the Botnia port.
On this subject, JudgeTorresBernárdez recalls that the initial environmental authorization (AAP)
for the Orion (Botnia) mill of 14February2005 granted by Uruguay was for both the paper pulp
mill and its port terminal, and also that a Uruguayan resolution of 5 July 2005 authorized Botnia to
make use of the river bed for the construction of the terminal. However, he also notes that
approximately one month after this resolution, on 3August2005, the Argentine and Uruguayan
delegations agreed, at the first GTAN meeting, to refer the Botnia port terminal project to CARU
without condition. Following this understanding, Uruguay transmitted the Uruguayan resolution of
5July2005 to CARU by diplomatic note of 15 August2005, in accordance with Article7 of the
Statute, and, on 13October2005, it supplied the Commission with the additional information on
the project requested by the Argentine delegation. - 18 -
47. Thus, by agreement of the Parties, the Botn ia port terminal project was not the subject of
“direct negotiations” within the GTAN. However, nor was it examined by CARU for the purposes
of Article 7 of the Statute because Argentina blocke d the preliminary review of the project by the
Commission on the basis of Uruguay’s refusal to halt c onstruction work on the port. It follows, in
Judge Torres Bernárdez’s opinion, that the dispute over the port terminal at the Orion (Botnia) mill,
which in fact was included in the Applicatio n instituting proceedings of 4May2006, is
inadmissible, because the procedural steps set out in Articles7et seq. of the Statute were not
followed, and because this dispute was not the subject of “direct negotiations”, within the GTAN or
elsewhere, a prerequisite under Article 60 of the Statute to be able to seise the Court of any dispute
concerning the interpretation or application of the Statute of the River Uruguay. Furthermore, the
180-day period which Article12 of the Statute reserves for “direct negotiations” was also not
respected because, in point of fact, only some 140days elapsed between Argentina’s diplomatic
note of 14 December 2005 and 4 May 2006, when it filed its Application instituting proceedings.
48. As for the substance, Judge Torres Bernárde z believes that the Botnia port project is not
of sufficient scope (“de entidad suficiente”) to ma ke it “liable” to affect navigation, the régime of
the river or the quality of its waters and therefor e does not fall within the provisions of Article7,
paragraph 1, of the Statute. In 2001, Uruguay informed CARU of the plan to build the M’Bopicuá
port after the AAP was granted for it; the two dele gations nevertheless were able to come quickly
to the conclusion, within the framework of CARU, that the port in question, much larger than the
Botnia port, did not represent a threat to navigati on, the régime of the river or the quality of its
waters. It would appear therefore that objectivel y there is no dispute between the Parties on the
environmental viability of the Botnia port. Furthermore, between 1979 and 2004, Argentina
authorized the construction or restoration of ports on its bank of the river in Fédération, Concordia,
Puerto Yuqueri and Concepcion del Uruguay, with out informing CARU and without notifying or
consulting Uruguay.
49. In light of the preceding considerations, JudgeTorresBernárdez cannot endorse the
conclusion in paragraph149 of the Judgment. However, given that the breaches found in the
Judgment to have been committed by Uruguay are in themselves of a procedural nature and minor
in gravity— in the sense that not one constitu tes a “material breach”— JudgeTorresBernárdez
concurs with the Judgment that “satisfaction” is the appropriate redress under international law.
General conclusion
50. In view of all of the preceding considerations, JudgeTorresBernárdez does not agree
with the findings of the Court concerning the br eaches by Uruguay of its procedural obligations
towards Argentina, subject of the present case. Fo r this reason, he voted against point1 of the
operative clause of the Judgment.
Dissenting opinion Judge ad hoc Vinuesa
In a dissenting opinion, Judge ad hoc Vinuesa first noted his agreement with the Court’s
finding that Uruguay had breached the procedural ob ligations of the 1975 Statute. As to the link
between procedural and substantive viol ations under the Statute, Judgeadhoc Vinuesa disagreed
with the Court, finding that the procedural viola tions themselves constituted substantive violations.
Next, Judge ad hoc Vinuesa held that a proper interpretation of the 1975 Statute under customary
international law and the 1969 Vienna Convention on the Law of Treaties required an extension of
the non-construction obligation imposed on Urug uay which would terminate only after the final
resolution of the dispute by the Court. On th e issue of reparation for the procedural breaches,
Judge ad hocVinuesa found that , although the special circumstances of the case ⎯ Uruguay’s - 19 -
repetition of breaches and its ac tions taken in bad faith ⎯ justified the imposition by the Court of
an obligation of non-repetition upon Uruguay, this non-repetition obligation was implicit in the
Court’s Judgment and was further required by principles of good faith found in customary
international law.
On the issue of substantive obligations, Judgeadhoc Vinuesa dissented from the Court’s
finding that the violations of these obligations had not been proven, discussing multiple flaws in the
Judgment that led to this conclusion. First, Judge ad hoc Vinuesa questioned the Court’s reasoning
on issues surrounding the burden of proof in the case. Then, Judgeadhoc Vinuesa turned to
substantive violations by Uruguay of Articles1 and27 and Article36 of the Statute, finding that
these substantive obligations had not been followed by Uruguay. Next, Judge ad hoc Vinuesa held
that Article41 was violated by Uruguay because it had not properly performed an environmental
impact assessment. Specifically, Uruguay failed to properly consider the alternative sites for the
plant and it had not consulted the affected popula tion in a way that guaranteed their effective
participation, as was required.
Finally, Judge ad hoc Vinuesa noted that the lack of scien tific certainty in the evidence was
particularly troubling. This lack of certainty undermined the conclusions drawn by the Court on all
of the alleged violations by Uruguay of its subs tantive obligations. Noting that the Court often
found that there was not enough evidence, or th at proper conclusions could not be drawn,
Judge ad hoc Vinuesa suggested that the Court would have been better served to request an outside
expert’s opinion, as has been done in the past, or to otherwise ensure that the Judgment was based
on complete information, a clearer view of the state of the river’s ecology, and full consideration of
the future impact of the pulp mill on the river.
Based on these conclusions, Judge ad hoc Vinuesa held that by bypassing the application of
the precautionary principle as required by the 1975 Statute and by general international law, the
Court did not properly adjudge Uruguay’s violations of the substantive obligations.
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Summary of the Judgment of 20 April 2010