INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Summary
Not an official document
2007/1 Summary
23 January 2007
Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
Request for the indication of provisional measures
Summary of the Order of 23 January 2007
Application and requests for the indication of provisional measures
The Court recalls that, by an Application filed in the Registry of the Court on 4May2006,
the Argentine Republic (hereinafter “Argentin a”) instituted proceedings against the Eastern
Republic of Uruguay (hereinafter “Uruguay”) for the alleged breach by Uruguay of obligations
under the Statute of the RiverUruguay, which was signed by Argentina and Uruguay on
26 February 1975 and entered into force on 18 September 1976 (hereinafter the “1975 Statute”). In
its Application, Argentina claims that that breach arises from “the authorization, construction and
future commissioning of two pulp mills on the Rive r Uruguay”, with reference in particular “to the
effects of such activities on the quality of the waters of the River Uruguay and on the areas affected
by the river”.
Argentina bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the
Court and on the first paragraph of Article 60 of the 1975 Statute, which provides inter alia that any
dispute concerning the interpretation or application of the 1975 Statute “which cannot be settled by
direct negotiations may be submitted by either Party to the International Court of Justice”.
On the basis of the statement of facts and the legal grounds set out in the Application,
Argentina requests the Court to adjudge and declare:
“1.that Uruguay has breached the obligations incumbent upon it under the
1975Statute and the other rules of international law to which that instrument
refers, including but not limited to:
(a) the obligation to take all necessary measures for the optimum and rational
utilization of the River Uruguay;
(b) the obligation of prior notificatioto CARU [the Spanish acronym of the
Administrative Commission of the River Uruguay] and to Argentina;
(c) the obligation to comply with the procedures prescribed in ChapterII of the
1975 Statute; - 2 -
(d)the obligation to take all necessary measures to preserve the aquatic
environment and prevent pollution and the obligation to protect biodiversity
and fisheries, including the obligation to prepare a full and objective
environmental impact study;
(e) the obligation to co-operate in the pr evention of pollution and the protection
of biodiversity and of fisheries; and
2. that, by its conduct, Uruguay has enga ged its international responsibility to
Argentina;
3. that Uruguay shall cease its wrongful conduct and comply scrupulously in future
with the obligations incumbent upon it; and
4. that Uruguay shall make full reparation for the injury caused by its breach of the
obligations incumbent upon it.”
The Court recalls that, immediately after f iling its Application on 4May2006, Argentina
submitted a request for the indicatio n of provisional measures requir ing Uruguay: to suspend the
authorizations for the construction of the mills and to suspend building work on them pending the
Court’s final decision; and to co-operate with Argentina in order to protect and preserve the
aquatic environment of the River Uruguay, to refrain from taking any further unilateral action with
respect to construction of the two mills which do es not comply with the 1975Statute and also to
refrain from any other action which might aggravate the dispute or render its settlement more
difficult. By Order dated 13July2006, the Court found “that the circumstances, as they now
present themselves to the Court, are not such as to require the exercise of its power under
Article41 of the Statute to indicate provisional measures”. By Order of the same date, the Court
fixed time-limits for the filing of the initial written pleadings.
On 29November2006, Uruguay, referring to the pending case and citing Article41 of the
Statute of the Court and Article73 of the Rule s of Court, in turn submitted a request for the
indication of provisional measures, asserting that th ey were “urgently needed to protect the rights
of Uruguay that are at issue in these proceedings from imminent and irreparable injury, and to
prevent the aggravation of the present dispute”. Uruguay stated interalia that, since
20 November 2006, “[o]rganized groups of Argen tine citizens have blockaded a vital international
bridge over the Uruguay River, shutting off commercial and tourist travel from Argentina to
Uruguay” and that those groups planned to exte nd the blockades to the river itself. Uruguay
claimed to have suffered significant economic injury from these actions, against which Argentina
has failed, according to Uruguay, to take any steps. It alleged that the stated purpose of the actions
was to force it to accede to Argentina’s demand that it permanently end construction of the Botnia
pulp mill, the subject-matter of the dispute, and prevent the plant from ever coming into operation.
At the conclusion of its request Uruguay asked the Court to indicate the following measures:
“While awaiting the final judgment of the Court, Argentina
(i) shall take all reasonable and appropriate steps at its disposal to prevent or end
the interruption of transit between Uruguay and Argentina, including the
blockading of bridges and roads between the two States;
(ii) shall abstain from any measure that might aggravate, extend or make more
difficult the settlement of this dispute; and
(iii)shall abstain from any other meas ure that might prejudice the rights of
Uruguay in dispute before the Court.” - 3 -
Jurisdiction of the Court
The Court notes that at the hearings on 18 and 19 December 2006 Argentina challenged the
jurisdiction of the Court to indicate the provisional measures sought by Uruguay on the ground,
notably, that the request had no link with the Stat ute of the River Uruguay or with the Application
instituting proceedings. In Argentina’s view, the real purpose of Uruguay’s request was to obtain
the removal of the roadblocks and none of the right s potentially affected by the roadblocks, that is
the right to freedom of transport and to freedom of commerce between the two States, were rights
governed by the Statute of the River Uruguay. Argentina argued that those rights were governed
by the Treaty of Asunción, which establishe d the Southern Common Market (hereinafter
“Mercosur”), pointing out that Uruguay had already seised a Mercosur adhoc Tribunal in relation
to the roadblocks and that that tribunal had ha nded down its decision on the case on 6September
last, which decision was final and binding and constituted resjudicata with respect to the Parties.
Argentina contended that Mercosur’s dispute se ttlement system ruled out the possibility of
applying to any other forum.
The Court next sets out Uruguay’s arguments. Uruguay denied that its request for the
indication of provisional measures sought to obtain from the Court condemnation of the
unlawfulness of the blocking of international roads and bridges connecting Argentina to Uruguay
under general international law or under the rules of the Treaty of Asunción. According to
Uruguay, the roadblocks constituted unlawful acts violating and threatening irreparable harm to the
very rights which it was defending before the Co urt. Uruguay maintained that the blocking of
international roads and bridges was a matter direct ly, intimately and indissociably related to the
subject-matter of the case before the Court a nd that the Court unquestionably had jurisdiction to
entertain it. Uruguay further denied that the me asures it had taken within the framework of the
Mercosur institutions had any bearing whatsoever on the Court’s jurisdiction, given that the
decision of the ad hoc Tribunal of 6 September 2006 concerned different roadblocks ⎯ established
at another time and with a different purpose ⎯ to those referred to in its request for provisional
measures and that it had not instituted any further proceedings within Mercosur’s dispute
settlement mechanisms with respect to the existing roadblocks.
The Court first points out that, in dealing with a request for provisional measures, it need not
finally satisfy itself that it has jurisdiction on the merits of the case but that it will not indicate such
measures unless there is, primafacie, a basis on which its jurisdiction might be established. It
observes that this is so whether the request is made by the applicant or by the respondent in the
proceedings on the merits.
After noting that it already concluded, in its Order of 13July2006, that it had prima facie
jurisdiction under Article60 of the 1975Statute to deal with the merits of the case, the Court
examines the link between the rights sought to be protected through the provisional measures and
the subject of the proceedings beforethe Court on the merits of the case. It observes that Article 41
of the Court’s Statute authorizes it to indicate “any provisional measures which ought to be taken to
preserve the respective rights of either party” and states that the rights of the respondent (Uruguay)
are not dependent solely upon the way in wh ich the applicant (Argentina) formulates its
application.
The Court finds that any right Uruguay may have to continue the construction and to begin
the commissioning of the Botnia plant in confor mity with the provisions of the 1975Statute,
pending a final decision by the Court, effectively constitutes a claimed right in the present case,
which may in principle be protected by the indication of provisional measures. It adds that
Uruguay’s claimed right to have the merits of the present case resolved by the Court under
Article60 of the 1975Statute also has a connection with the subject of the proceedings on the
merits initiated by Argentina and may in principl e be protected by the indication of provisional
measures. - 4 -
The Court concludes that the rights which Uruguay invokes in, and seeks to protect by, its
request have a sufficient connection with the me rits of the case and that Article60 of the
1975 Statute may thus be applicable to those rights. The Court points out that the rights invoked by
Uruguay before the Mercosur adhoc Tribunal are different from those that it seeks to have
protected in the present case and that it follows that the Court has jurisdiction to address Uruguay’s
request for provisional measures.
Provisional measures: reasoning of the Court
The Court observes that its power to indicate provisional measures has as its object to
preserve the respective rights of each party to the proceedings “[p]ending the final decision”,
providing that such measures are justified to prev ent irreparable prejudice to the rights which are
the subject of the dispute. It adds that this pow er can be exercised only if there is an urgent
necessity to prevent irreparable prejudice to such rights, before the Court has given its final
decision.
In respect of the first provisional measure sought by Uruguay, namely that Argentina “shall
take all reasonable and appropriate steps at its dis posal to prevent or end the interruption of transit
between Uruguay and Argentina, including the blockading of bridges and roads between the two
States”, the Court notes that, according to Uruguay: roadblocks have been installed on all of the
bridges linking Uruguay to Argentina; the Fray Bentos bridge, which normally carries 91 per cent
of Uruguay’s exports to Argentina, has been subject to a complete and uninterrupted blockade; and
the two other bridges linking the two countries “h ave at times been closed” and that there was a
real risk of them being blocked permanently. Again according to Uruguay, these roadblocks have
an extremely serious impact on Uruguay’s econom y and on its tourist industry and are moreover
aimed at compelling Uruguay to halt construction of the Botnia plant, which would be lost in its
entirety, thereby leading to irreparable prejudice. Uruguay further claimed that, in encouraging the
blockades, Argentina had initiated a trend intended to result in irreparable harm to the very
substance of the rights in dispute and that, accordingly, “it is the blockades that present the urgent
threat, not... [the] impact they may eventually have on the Botnia plant”. The Court notes that
Argentina disputed the version of the facts presented by Uruguay and argued that the issue was the
blockade of roads in Argentine territory and not of an international bridge. In its view, the
roadblocks were “sporadic, partial and geographi cally localized” and moreover had no impact on
either tourism or trade between the two countries, nor on the construction of the pulp mills, which
has continued. Argentina stated in this respec t that the Orion mill was “at 70percent of the
planned construction”. It added that it had ne ver encouraged the roadblocks, nor provided the
blockaders with any support, and submitted that the partial blocking of roads in Argentina was not
capable of causing irreparable prejudice to the rights which will be the subject of the Court’s
decision on the merits, and that there was no urgency to the provisional measures sought by
Uruguay.
Referring to the arguments of the Parties, th e Court expresses its view that, notwithstanding
the blockades, the construction of the Botnia plant has progressed significantly since the summer of
2006 with two further authorizations having been granted and that it is now well advanced and thus
continuing. It states that it is not convinced th at the blockades risk prejudicing irreparably the
rights which Uruguay claims in the present case fr om the 1975 Statute as such and adds that it has
not been shown that, were there such a risk, it would be imminent. The Court consequently finds
that the circumstances of the case are not such as to require the indication of the first provisional
measure requested by Uruguay, to “prevent or en d the interruption of transit” between the two
States and inter alia “the blockading of [the] bridges and roads” linking them.
The Court next turns to the other two provisio nal measures sought by Uruguay, namely that
Argentina “shall abstain from any measure that might aggravate, extend or make more difficult the
settlement of this dispute; and shall abstain from any other measure that might prejudice the rights - 5 -
of Uruguay in dispute before the Court”. The Court refers to Uruguay’s argument that an order can
be made to prevent aggravation of the dispute ev en where the Court has found that there is no
threat of irreparable damage to the rights in dispute and notes that, according to Uruguay, the
blockade of the bridges over the RiverUruguay am ounts to an aggravation of the dispute which
threatens the due administration of justice. Uruguay further argued that, given Argentina’s conduct
aimed at compelling Uruguay to submit, without waiting for the judgment on the merits, to the
claims asserted by Argentina before the Court, the Court should order Argentina to abstain from
any other measure that might prejudice Uruguay’s rights in dispute. The Court observes that, in
Argentina’s view, there was no risk of aggravation or extension of the dispute and nothing in its
conduct infringed Uruguay’s procedural rights or endangered Uruguay’s rights to continue the
proceedings, to deploy all its grounds of defence and to obtain from the Court a decision with
binding force. Argentina added that, in the absence of any link to the subject-matter of the
proceedings, should the Court decide not to indica te the first provisional measure, the second and
third provisional measures requested by Uruguay could not be indicated independently from the
first.
The Court points out that it has on several occasions, in past cases of which it cites examples,
indicated provisional measures di recting the parties not to take any actions which could aggravate
or extend the dispute or render more difficult its settlement. It notes that in those cases provisional
measures other than those directing the parties not to take actions to aggravate or extend the dispute
or to render more difficult its settlement were also indicated. In this case the Court does not find
that there is at present an imminent risk of irre parable prejudice to the rights of Uruguay in dispute
before it, caused by the blockades of the bridges and roads linking the two States. It therefore
considers that the blockades themselves do not justify the indication of the second provisional
measure requested by Uruguay, in the absence of the conditions for the Court to indicate the first
provisional measure. For the aforementioned reasons, the Court cannot indicate the third
provisional measure requested by Uruguay either.
Having rejected Uruguay’s request for the indi cation of provisional measures in its entirety,
the Court reiterates its call to the Parties made in its Order of 13July2006 “to fulfil their
obligations under international law”, “to implement in good faith the consultation and co-operation
procedures provided for by the 1975Statute, with CARU [Administrative Commission of the
RiverUruguay] constituting the envisaged forum in this regard”, and “to refrain from any actions
which might render more difficult the resolution of the present dispute”. It points out that its
decision in no way prejudges the question of its jurisd iction to deal with the merits of the case or
any questions relating to the admissibility of the A pplication or to the merits themselves and that
the decision leaves unaffected the right of Ar gentina and of Uruguay to submit arguments in
respect of those questions. The decision also leav es unaffected the right of Uruguay to submit in
the future a fresh request for the indication of provisional measures under Article 75, paragraph 3,
of the Rules of Court, based on new facts.
*
The full text of the Order’s final paragraph (para. 56) reads as follows:
“For these reasons,
T HE C OURT ,
By fourteen votes to one, - 6 -
Finds that the circumstances, as they now present themselves to the Court, are
not such as to require the exercise of its power under Article41 of the Statute to
indicate provisional measures.
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh;
Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Vinuesa;
A GAINST: Judge ad hocTorresBernárdez.”
*
Judges Koroma and Buergenthal have appended declarations to the Order.
Judge ad hoc Torres Bernárdez has appended a dissenting opinion to the Order.
___________ Annex to Summary 2007/1
Declaration of Judge Koroma
In a declaration attached to the Order Judge Koroma has pointed out that the decision taken
by the Court in this case was judicious. That while the Court found that it had prima facie
jurisdiction, but, because no imminent threat of irreparable harm or prejudice to Uruguay’s rights
was demonstrated, it could not uphold the request in its entirety, Judge Koroma considered it
appropriate to call on the Parties not to take any action that might render more difficult the
resolution of the dispute. He believes that this exhortation not only falls within the purview of
Article41of the Statute ⎯ the preservation of the resp ective rights of the Parties ⎯ but should
encourage them to solve their dispute peacefully. In his view, the judicial function is not limited to
settling disputes and fostering the development of the law but includes encouraging parties in
dispute to find a peaceful solution to their dispute on the basis of law rather than otherwise.
Declaration of Judge Buergenthal
Although agreeing with the Court’s decision rejecting Uruguay’s request for provisional
measures, Judge Buergenthal argues in his Declar ation that the Court has the power to grant two
distinct types of provisional measures. One type is based on a finding that there is an urgent need
for such measures because of the risk of irrepara ble prejudice or harm to the rights that are the
subject of the dispute over which the Court has prima facie jurisdiction. The other type of
provisional measures may be indicated, according to Judge Buergenthal, in order to prevent the
aggravation or extension of the dispute by ex trajudicial coercive means unrelated to the
subjectmatter of the dispute. He submits that by focusing only on the first type, the Court missed
an opportunity to thoroughly consider the full scope of its power under Article 41 of its Statute in
circumstances involving allegations of extrajudicial coercive measures.
Judge Buergenthal concludes that, despite the regrettable economic harm caused Uruguay by
the blockades of the bridges, these actions appear not to have seriously undermined the ability of
Uruguay to effectively protect its rights generally in the pending judicial proceedings.
Dissenting opinion of Judge ad hoc Torres Bernárdez
1. In his dissenting opinion Judge TorresBernárdez first examines the question of the
Court’s prima facie jurisdiction and the admissibility of Uruguay’s request for the indication of
provisional measures and then the question whether or not there is a risk of irreparable prejudice to
the disputed rights claimed by Uruguay and an urgent need to remedy it.
2. In respect of the first question, Judg e TorresBernárdez concludes that Argentina’s
contentions as to lack of jurisdiction and inadmissib ility are not supported by either the facts of the
case or the applicable law. Thus, Judge Torres Bernárdez expresses his agreement with the Court’s
rejection of the objections submitted by Argentina (p ara.30 of the Order). He also sees in this
rejection confirmation that the rights invoked by Uruguay as a party to the 1975Statute of the
River Uruguay, for which Uruguay seeks protection through the indication of provisional measures,
are not, prima facie, non-existent or alien to the dis pute. They are fully plausible rights in dispute
and are sufficiently important and solid to mer it possible protective measures in response to a
party’s conduct threatening to infringe them. Thus, Uruguay’s claim satisfies the “fumus boni
juris” or “fumus non mali juris” test. - 2 -
3. In respect of the question whether or not there is a risk of irreparable prejudice to the
disputed rights claimed by Uruguay and an urge nt need to remedy it, Judge TorresBernárdez
begins by recalling that, under Article41 of the St atute of the Court, the indication of provisional
measures presupposes that “irreparable prejudice” shall not be caused in the course of the judicial
proceedings to rights which are the subject of dispute and that the Court must therefore be
concerned to preserve by such measures the ri ghts which may subsequently be adjudged by the
Court to belong either to the Applicant or to the Respondent (see, for example, Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of
8 April 1993, I.C.J. Reports 1993, p.19, para.34). But it is obviously unnecessary, where
provisional measures are to be indicated, for the “p rejudice” itself already to have occurred. It is
enough for there to be a serious “risk” of irreparable prejudice to the rights at issue. This explains
why it is well-established in the jurisprudence of the Court that provisional measures are aimed at
responding not to “irreparable prejudice” per se, but to a “risk of irreparable prejudice” to the rights
in dispute. And it is indeed the “risk” and the “urgency” which must be shown.
4. Judge Torres Bernárdez points out that, in addressing the issue of the existence of the risk
and its imminence, he will rely essentially on fact ual elements. He notes that the term “prejudice”
as used in the jurisprudence of the Court has a br oader, more elastic meaning than economic injury
or loss alone. As for the “irreparability” of the prejudice, he concurs that the main test employed in
the jurisprudence refers to preserving the integrity and effectiveness of the judgment on the merits.
5. The fact that in the present case the rights claimed by Uruguay, targeted by the
“asambleistas” of Gualeguaychu and its environs, are “rights in dispute” before the Court in no way
changes Argentina’s obligations as territorial sovereign. Further, as a Party to the case, Argentina
must not forestall the Court’s final decision on the “rights in dispute” in the case which it itself
referred to the Court. Moreover, the situation has deteriorated since late November 2006. It should
have prompted the exercise by the Court of its power to indicate such measures to preserve
Uruguay’s rights at issue and to check the marked proclivity towards aggravating and extending the
dispute.
6. In the opinion of Judge Torres Bernárdez, the circumstances of the present case require the
indication of very specific provisional measures. It is rare for a respondent State to find itself
exposed, as a “litigant”, to economic, social and political injury as a result of coercive actions taken
by nationals of the applicant State in that State. The avowed purpose of those coercive actions is to
halt the construction of the “Orion” pulp mill or to force its relocation, i.e. to cause prejudice to
Uruguay’s main right at issue in the case. Nor is it frequent for an applicant State to “tolerate” such
a situation, relying on a domestic policy of persuasion, rather than repression, vis-à-vis social
movements and, for that reason, fa iling to exercise the “due diligence” required of the territorial
sovereign by general international law in the area, including first and foremost compliance with the
obligation not knowingly to allow its territory to be used for acts contrary to the rights of other
States (case concerning Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J.
Reports 1949, p. 22).
7. Notwithstanding the foregoing points, the Co urt found that the circumstances of the case
were not such as to require the indication of the first provisional measure requested by Uruguay, to
“prevent or end the interruption of transit” between the two States and inter alia “the blockading of
[the] bridges and roads” linking them (paragraph 43 of the Order). In the Order this conclusion is
supported by reasoning which casts no doubt on the facts as such, i.e. on the existence of the
blockades of the Argentine access roads to the inte rnational bridges. However, the Court did not
see in them any “imminent risk” of “irreparable prejudice” to Uruguay’s right to build the “Orion”
plant at Fray Bentos pendent lite. - 3 -
8. Judge Torres Bernárdez takes issue with this finding in the Order because it is based on a
“reductionist” approach to the concept of “imminent risk of irreparable prejudice” and to the scope
of “Uruguay’s rights in dispute” in the case. This “reductionism” is evidenced by the fact that the
Court refrained from considering whether the blockades have caused and/or may continue to cause
economic and social prejudice to Uruguay. That however was the raison d’être of Uruguay’s
request. Uruguay sought to protect itself from th e significant damage caused to Uruguayan trade
and tourism inherent in the situation created by the blockades. After all, the blockades were set up
with the goal of making Uruguay pay a price, or a “toll”, to be able to pursue the building of the
“Orion” plant at Fray Bentos.
9. In this connection, the Judge points out in his opinion that the blockades tolerated by
Argentina have created a dilemma for Uruguay: either it halts construction of the “Orion” plant or
its pays an economic and social “toll” to be able to continue the building work. Thus, the fact that
construction of the plant is continuing does not dispel the “risk of prejudice ” to Uruguay’s rights
which are infringed by the blockades. On the c ontrary, the “toll” grows heavier by the day and
there is a recognized relationship between the fact s out of which the “toll” arises and Uruguay’s
claimed “right” to build the FrayBentos mill pending the final decision by the Court. Moreover,
the “toll” creates a security problem because the actions by the “asambleistas” cause alarm and
social tension which could give rise to border and trans-border incidents.
10. For JudgeTorresBernárdez, that “toll” may essentially be viewed as lost profit for the
Uruguayan economy and one which bears “a risk of prejudice” for the rights that the country is
defending in the instant case based on the Statute of the RiverUruguay, inter alia the right to
continue construction of the Orion mill in Fray Bentos and the right to have the legal dispute
between Argentina and Uruguay over the paper mills decided in accordance with Article 60 of the
river’s Statute, as “subsequent events may [effect ively] render an application without object” (case
concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988 , p.95, para.66). For example, the passage of time
has stripped certain conclusions of Argentina’s App lication of 4May2006 of their relevance, as
ENCE’s planned CMB mill has been relocated to Punta Pereyra on the Uruguayan side of the
River Plata. Therein lies the “risk of prejudice” to the rights in dispute for Uruguay in the present
case. Social peace is much appreciated by industrial concerns. The Argentine demonstrators are
well aware of this, as indicated by the fact that they began the current road and bridge blockades
shortly after the Orion project was approved by the World Bank and its lending institutions.
11. The prejudice in question is, by its very nature, “irreparable”, as the Court’s Judgment
could not restore the “Orion” project to Fray Bentos should Botnia decide to leave. Although this
is not so for the moment, it is not the point. What matters, in Judge Torres Bernárdez’s view, is the
“risk of prejudice” and this risk is a real and present one as Argentina has not taken the measures
necessary to put an end to the situation caused by the roadblocks nor to prevent a repetition of
them. The “irreparable prejudice” also urgently needs to be eliminated because it is a “present
risk”.
12. That present risk has steadily increased since the end of November2006 with the
regrettable consequences that can readily be imagined for the sustainable economic development of
the country. It also impairs the right to have the dispute resolved by the Court under Article 60 of
the Statute of the River Uruguay. The need to protect this right as of now cannot be open to doubt
as the duration of the risk of prejudice created by the “toll” threatens the very integrity of the
judicial settlement.
13. Furthermore, the harm caused to the Uruguayan economy by the roadblocks is in no way
a prejudice which Uruguay is supposed to suffer under the material law applicable to the legal
dispute before the Court ⎯ i.e. the 1975Statute of the RiverUruguay ⎯ nor under the Statute or
the Rules of Court or the Order of 13 July 2006 ei ther. Uruguay is entitled to call for an end to the
roadblocks and the actions of the demonstrators which are damaging its economy, thus creating a - 4 -
“present risk” for the rights claimed by it in the ca se. Argentina, in turn, has particular duties of its
own in this respect as the State with authority over the territory in which the acts in question are
taking place, and also as a Party to the present case. It is surprising that, hitherto, neither of these
two duties has prompted the Argentine authorities to put an end to the roadblocks.
14. Lastly, Judge Torres Bernárdez considers that, for the indication of provisional measures,
there is an ample prima facie legal link between: (1) the facts related to the blockade of roads and
bridges by Argentine demonstrators, tolerated by th at country’s authorities; (2) the present risk of
irreparable prejudice to Uruguay’s rights at issue; (3)the principle of optimum and rational
utilization of the River Uruguay and its water, includ ing for industrial purposes in conformity with
the régime governing the river and the quality of its water (Article27 of the 1975Statute); and
(4)the judicial resolution of disputes under th e Statute. Argentina’s Application instituting
proceedings would appear to confirm these links.
15. In light of these considerations, and taking account of the arguments and documents
presented by the Parties, JudgeTorresBernárdez considers that the circumstances of the case
favour the indication of the first provisional measure requested by Uruguay, namely, that Argentina
must take “all reasonable and appropriate steps at its disposal to prevent or end the interruption of
transit between Uruguay and Argentina, including the blockading of bridges and roads between the
two States”.
16. Judge Torres Bernárdez also disagrees with the Order as regards the failure to indicate, in
its operative part, a provisional measure to avoid the aggravation or extension of the dispute or to
make its settlement more difficult, which is the matter raised by the second provisional measure
requested by Uruguay. For Judge Torres Bernárdez, the particular circumstances of the case,
including those subsequent to the hearings which are in the public domain, call for the urgent
indication of provisional measures relating to the non-aggravation and non-extension of the dispute
addressed to both Parties . Regarding the latter aspect, Judge Torres Bernárdez therefore diverges
from Uruguay’s formulation of the second measure it requests (Article 75, paragraph 2, of the
Rules of Court).
17. The opinion stresses the full importance of the Court’s power to indicate the
above-mentioned measures “independently” of th e requests for the indication of provisional
measures presented by the parties with a view to safeguarding specific rights. Such declarations
have been incorporated into the reasoning of Orders for provisional measures both before and after
the LaGrand case.
18. Judge Torres Bernárdez regrets the fact that the Court has not indicated provisional
measures for both Parties to avoid aggravating or extending the dispute. The Court should have
done so on the basis of international law, namely, on the
“principle universally accepted by internati onal tribunals and likewise laid down in
many conventions... to the effect that the parties to a case must abstain from any
measure capable of exercising a prejudicial effect in regard to the execution of the
decision to be given and, in general, not a llow any step of any kind to be taken which
might aggravate or extend the dispute” (Ele ctricity Company of Sofia and Bulgaria,
P.C.I.J., Series A/B No. 79, p. 199; LaGrand (Germany v. United States of America),
Judgment, I.C.J. Reports 2001, p. 503, para. 103).
19. Lastly, Judge Torres Bernárdez concurs with the Order as regards its rejection of the
third provisional measure requested by Uruguay, but not for the reason indicated in the Order
(para. 51). For him, that third provisional measure lacks precision, is insufficiently specific and the
circumstance of the case at present do not require the indication of a measure so broad in scope. - 5 -
20. In short, Judge Torres Bernárdez concur s with the Order’s conclusion regarding the
Court’s prima facie jurisdiction to entertain Urugua y’s request and with its rejection of the third
measure requested. On the other hand, he disagree s with the Order’s rejection of the first measure
requested, as well as with its rejection of the second measure reformulated so that it is addressed to
both parties. These two points of disagreement prevented him from voting in favour of the Order.
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Summary of the Order of 23 January 2007