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The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73 and 74 of the Rules of Court,
Makes the following Order:
1. Whereas by an Application filed in the Registry of the Court on 4 May
2006, the Argentine Republic (hereinafter “Argentina”) instituted
proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”)
for the alleged breach by Uruguay of obligations under the Statute of the
River Uruguay, which was signed by Argentina and Uruguay on 26 February 1975
and entered into force on 18 September 1976 (hereinafter the “1975 Statute”);
whereas such breach is said to arise from “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”;
2. Whereas Argentina explains that the 1975 Statute was adopted in
accordance with Article 7 of the Treaty defining the boundary on the River
Uruguay between Argentina and Uruguay, signed at Montevideo on 7 April 1961
and which entered into force on 19 February 1966, which provided for the
establishment of a joint régime for the use of the river;
3. Whereas in its aforementioned Application 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 as follows: “Any dispute concerning the interpretation or
application of the [1961] Treaty and the [1975] Statute which cannot be
settled by direct negotiations may be submitted by either party to the
International Court of Justice”; and whereas Argentina adds that direct
negotiations between the parties have failed;
4. Whereas in its Application Argentina states that the purpose of the 1975
Statute is “to establish the joint machinery necessary for the optimum and
rational utilization” of that part of the River Uruguay which is shared by
the two States and constitutes their common boundary; whereas it further
states that in addition to governing “activities such as conservation,
utilization and development of other natural resources”, the 1975 Statute
deals with “obligations of the parties regarding the prevention of pollution
and the liability resulting from damage inflicted as a result of pollution”
and sets up an “Administrative Commission of the River Uruguay” (hereinafter
“CARU”, in its Spanish acronym) whose functions include regulation and co-ordination;
whereas Argentina submits, in particular, that Articles 7 to 13 of the
Statute provide for an obligatory procedure for prior notification and
consultation through CARU for any party planning to carry out works liable
to affect navigation, the régime of the river or the quality of its waters;
5. Whereas Argentina states that the Government of Uruguay, in October 2003,
“unilaterally authorized the Spanish company ENCE to construct a pulp mill
near the city of Fray Bentos”, a project known as “Celulosa de M’Bopicuá” (hereinafter
“CMB”), and claims that this was done without complying with the above-mentioned
notification and consultation procedure;
6. Whereas Argentina maintains in its Application that, despite its repeated
protests concerning “the environmental impact of the proposed mill”, made
both directly to the Government of Uruguay and to CARU, “the Uruguayan
Government has persisted in its refusal to follow the procedures prescribed
by the 1975 Statute”, and that Uruguay has in fact “aggravated the dispute”
by authorizing the Finnish company Oy Metsä-Botnia AB (hereinafter “Botnia”)
in February 2005 to construct a second pulp mill, the “Orion mill”, in the
vicinity of the CMB plant; whereas according to Argentina the “Uruguayan
Government has further aggravated the dispute” by issuing authorization to
Botnia in July 2005 “for the construction of a port for the exclusive use of
the Orion mill without following the procedures prescribed by the 1975
Statute”;
7. Whereas Argentina claims that the authorization by the Government of
Uruguay for the projected works was given without due consideration for the
environmental impact of the construction of such plants, and in support of
this claim refers to specific deficiencies in the environmental assessment
carried out for each project;
8. Whereas in its Application Argentina argues that “the CMB and Orion pulp
mills will jeopardize conservation of the environment of the River Uruguay
and of the areas affected by the river”; whereas it notes, in this
connection, that these pulp mills have been classified by the National
Directorate for the Environment of the Uruguayan Government (hereinafter
“DINAMA” in its Spanish acronym) “as projects presenting a risk of major
negative environmental impact”, that “the process envisaged by the CMB and
Orion projects . . . is inherently polluting” and that “90 per cent of fish
production in the Argentina-Uruguay section of the river (over 4,500 tonnes
per year) is located within the areas affected by the mills, which are also
a breeding area for the river’s migratory fish stocks”; whereas Argentina
further notes with concern “the amount of effluent which these mills are
expected to discharge into the River Uruguay”, their proximity to “major
urban population centres” and “the inadequacy of the measures proposed for
the prevention and reduction of the potential impact of liquid effluent, gas
emissions and solid waste”;
9. Whereas in its Application Argentina states that direct negotiations
between the two States through various channels have failed, including
through the High-Level Technical Group (hereinafter “GTAN”, in its Spanish
acronym) which was set up to resolve the dispute between them and which met
“12 times between 3 August 2005 and 30 January 2006”;
10. Whereas, with regard to the current situation, Argentina explains that
“ENCE has carried out only groundworks for the construction of the CMB mill
and has suspended work on construction of the plant for 90 days with effect
from 28 March 2006”; whereas Argentina contends that “[c]onstruction of the
Orion mill continues notwithstanding the dispute between the Parties” and
that “[t]he mill is scheduled to commence operations during the first half
of 2007”; whereas Argentina also states that “[i]t is furthermore understood
that Uruguay is in process of authorizing the construction of a third mill
on the Rio Negro, a tributary of the River Uruguay”;
11. Whereas Argentina concludes its Application with the following
submissions:
“On the basis of the foregoing statement of facts and law, Argentina, while
reserving the right to supplement, amend or modify the present Application
in the course of the subsequent procedure, requests the Court to adjudge and
declare:
1. that Uruguay has breached the obligations incumbent upon it under the
1975 Statute 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 notification to CARU and to Argentina;
(c) the obligation to comply with the procedures prescribed in Chapter II of
the 1975 Statute;
(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 prevention of pollution and the
protection of biodiversity and of fisheries; and
2. that, by its conduct, Uruguay has engaged 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”;
12. Whereas, on 4 May 2006, after filing its Application Argentina also
submitted a request for the indication of provisional measures, pursuant to
Article 41 of the Statute of the Court and to Article 73 of the Rules of
Court;
13. Whereas in its request for the indication of provisional measures
Argentina refers to the basis of jurisdiction of the Court invoked in its
Application, and to the facts set out therein;
14. Whereas according to Argentina, the rights which it seeks to safeguard
by its request
“derive from the 1975 Statute and from the principles and rules of
international law necessary for its interpretation and application, in
particular:
(a) the right to ensure that Uruguay complies with the obligations provided
for in the 1975 Statute governing the construction of any works liable to
affect the régime of the River Uruguay or the quality of its waters;
(b) the right to ensure that Uruguay shall not authorize or undertake the
construction of works liable to cause significant damage to the River
Uruguay -- a legal asset whose integrity must be safeguarded -- or to
Argentina;
(c) the right of Argentina to ensure that the riparian population of the
River Uruguay under its jurisdiction residing in the proximity of the
projected works, or within the areas affected by them, may live in a healthy
environment and not suffer damage to their health, economic damage, or any
other type of damage, by reason of the construction and commissioning of
pulp mills in breach of the procedural and substantive obligations provided
for in the 1975 Statute and the principles and rules of international law
necessary for its interpretation and application”;
15. Whereas in support of its request for the indication of provisional
measures Argentina claims that “the commissioning of the CMB and Orion pulp
mills will inevitably affect significantly the quality of the waters of the
River Uruguay and cause significant transboundary damage to Argentina”, and
that “the cause of such damage lies, inter alia, in the choice of site, the
technology adopted and the methods proposed for the treatment of liquid
effluent, solid waste and gas emissions”;
16. Whereas Argentina adds that the continued construction of the works in
question “under the conditions described in the Application will also result
in serious social and economic damage in the areas affected by the River
Uruguay”;
17. Whereas in its request Argentina further states that the harmful
consequences of these activities would be “such that they could not simply
be made good by means of financial compensation or some other material
provision” and argues that
“failing adoption of the provisional measures requested, the commissioning
of the CMB and Orion mills before a final judgment is rendered would
seriously and irreversibly compromise the conservation of the environment of
the River Uruguay and of the areas affected by the river, as well as the
rights of Argentina and of the inhabitants of the neighbouring areas under
its jurisdiction”;
18. Whereas Argentina contends that the continued construction of the mills
“would set the seal on Uruguay’s unilateral effort to create a ‘fait
accompli’ and to render irreversible the current siting of the mills, thus
depriving Argentina of its right to have an overall, objective assessment of
the environmental impact carried out in order to determine whether or not
the mills can be built, or whether they should be built elsewhere, or on the
basis of criteria other than those currently applied”;
19. Whereas Argentina states that “[c]ontinued construction would enable the
CMB and Orion mills to be in service even before the end of the present
proceedings” and that the commissioning of the mills is scheduled for August
2007 for Orion, and June 2008 for CMB; whereas Argentina thus maintains that
“the situation undoubtedly calls for urgent measures to be taken”, and
further claims that “[n]ot only is there a risk that actions prejudicial to
the rights at issue in this case might be taken before a final judgment is
rendered, but such actions are already being taken”;
20. Whereas at the conclusion of its request for the indication of
provisional measures Argentina asks the Court to indicate that
“(a) pending the Court’s final judgment, Uruguay shall:
(i) suspend forthwith all authorizations for the construction of the CMB and
Orion mills;
(ii) take all necessary measures to suspend building work on the Orion mill;
and
(iii) take all necessary measures to ensure that the suspension of building
work on the CMB mill is prolonged beyond 28 June 2006;
(b) Uruguay shall co-operate in good faith with Argentina with a view to
ensuring the optimum and rational utilization of the River Uruguay in order
to protect and preserve the aquatic environment and to prevent its
pollution;
(c) pending the Court’s final judgment, Uruguay shall refrain from taking
any further unilateral action with respect to construction of the CMB and
Orion mills which does not comply with the 1975 Statute and the rules of
international law necessary for the latter’s interpretation and application;
(d) Uruguay shall refrain from any other action which might aggravate or
extend the dispute which is the subject-matter of the present proceedings or
render its settlement more difficult”;
21. Whereas on 4 May 2006, the date on which the Application and the request
for the indication of provisional measures were filed in the Registry, the
Registrar advised the Government of Uruguay of the filing of those documents
and forthwith sent it certified copies of them, in accordance with Article
40, paragraph 2, of the Statute of the Court and with Article 38, paragraph
4, and Article 73, paragraph 2, of the Rules of Court; and whereas the
Registrar also notified the Secretary-General of the United Nations of that
filing;
22. Whereas on 4 May 2006 the Registrar informed the Parties that the Court,
in accordance with Article 74, paragraph 3, of the Rules of Court, had fixed
31 May and 1 June 2006 as the dates for the oral proceedings;
23. Whereas, following the Registrar’s subsequent consultations with the
Parties, the Court decided to hear the Parties on 8 and 9 June 2006
concerning Argentina’s request for the indication of provisional measures;
and whereas the Parties were so advised by letters of 11 May 2006 from the
Registrar;
24. Whereas, on 2 June 2006, Uruguay transmitted to the Court a copy of a
CD-ROM containing the electronic version of two volumes of documents
concerning the request for the indication of provisional measures entitled
“Observations of Uruguay” (paper copies of which were subsequently
received); and whereas copies of these documents were immediately sent to
Argentina;
25. Whereas, on 2 June 2006, Argentina transmitted to the Court various
documents, including a video recording, and on 6 June 2006, it transmitted
additional documents; and whereas copies of each set of documents were
immediately sent to Uruguay;
26. Whereas, on 6 and 7 June 2006, various communications were received from
the Parties, in which each of them presented to the Court certain
observations on the documents filed by the other; whereas Uruguay raised
objections to the production of the video recording filed by Argentina;
whereas the Court decided not to authorize production of this recording at
the hearings;
27. Whereas, since the Court includes upon the Bench no judge of the
nationality of the Parties, each of them proceeded, in exercise of the right
conferred upon it by Article 31, paragraph 3, of the Statute, to choose a
judge ad hoc in the case; for this purpose Argentina chose Mr. Raúl Emilio
Vinuesa, and Uruguay chose Mr. Santiago Torres Bernárdez;
28. Whereas, at the public hearings held on 8 and 9 June 2006 in accordance
with Article 74, paragraph 3, of the Rules of Court, oral observations on
the request for the indication of provisional measures were presented by the
following representatives of the Parties:
On behalf of Argentina: H.E. Ms Susana Myrta Ruiz Cerutti, Agent,
Ms Romina Picolotti,
Mr. Philippe Sands,
Mr. Marcelo Kohen,
Ms Laurence Boisson de Chazournes,
Mr. Alain Pellet,
H.E. Mr. Raúl Estrada Oyuela;
On behalf of Uruguay: H.E. Mr. Héctor Gros Espiell, Agent,
Mr. Alan Boyle,
Mr. Luigi Condorelli,
Mr. Paul Reichler;
29. Whereas at the hearings both Parties produced further documents; whereas
at the beginning of its second round of oral observations, Uruguay presented
a number of documents including a “statement” made by Mr. Adriaan van
Heiningen, who was listed as an expert in the delegation of Uruguay; whereas
by a letter dated 9 June 2006 and received in the Registry on 12 June 2006,
Argentina objected to the “late filing of th[o]se documents” on the basis,
inter alia, that it was incompatible with the orderly progress of the
procedure and with the equality of the parties and requested the Court to
determine that those documents should not be considered to form part of the
case file; whereas by a letter dated 14 June 2006, Uruguay maintained that
all of the said documents “were submitted in conformity with the Rules and
practice of the Court” and as such should “remain as part of the record”,
except for the statement by Mr. van Heiningen, which Uruguay requested to be
withdrawn in order to facilitate the task of the Court; and whereas the
Court decided that the aforementioned documents should not be included in
the case file and the Parties were informed accordingly by letters of 15
June 2006 from the Registrar;
***
30. Whereas at the hearings Argentina, inter alia, reiterated the arguments
set out in its Application and its request for the indication of provisional
measures; and whereas it asserted that the conditions for the indication of
provisional measures had been fulfilled;
31. Whereas in its first round of oral observations, Argentina argued that
Article 60 of the 1975 Statute was “more than sufficient to establish the
prima facie jurisdiction of the Court in accordance with its established
jurisprudence”; and whereas it added that Article 12 of the 1975 Statute
provided that if, having followed the steps set down in Articles 7 to 11,
Argentina and Uruguay fail to agree on works liable to affect navigation,
the régime of the river or the quality of its waters, the procedure
indicated in Article 60 shall be followed;
32. Whereas Argentina claimed that its rights under the 1975 Statute arose
in relation to two interwoven categories of obligations: “obligations of
result that are of a substantive character, and obligations of conduct that
have a procedural character”;
33. Whereas Argentina observed that Article 41 (a) of the 1975 Statute
imposed substantive obligations and created for Argentina at least two
distinct rights: first, “the right that Uruguay shall prevent pollution”
and, second, “the right to ensure that Uruguay prescribes measures ‘in
accordance with applicable international standards’”; and whereas Argentina
submitted that Uruguay had respected neither of these obligations; whereas
Argentina asserted that the substantive obligations under the Statute
included “Uruguay’s obligation not to cause environmental pollution or
consequential economic losses, for example to tourism”;
34. Whereas Argentina stated that Articles 7 to 13 of the 1975 Statute and
Article 60 thereof establish a number of procedural rights held by
Argentina: “first, the right to be notified by Uruguay before works begin;
secondly, to express views that are to be taken into account in the design
of a proposed project; and, thirdly, to have th[e] Court resolve any
differences before construction takes place”; whereas it emphasized that,
according to Articles 9 and 12 of the 1975 Statute, Uruguay had the
obligation
“to ensure that no works are carried out until either Argentina has
expressed no objections, or Argentina fails to respond to Uruguay’s
notification, or the Court had indicated the positive conditions under which
Uruguay may proceed to carry out works”;
whereas it submitted that none of these three conditions had yet been met;
whereas it claimed that the above-mentioned procedures were mandatory and
“admit[ted] of no exception”; whereas Argentina further emphasized that, in
its view, Article 9 of the 1975 Statute “established a ‘no construction’
obligation . . . of central importance to this phase of the proceedings”;
35. Whereas Argentina maintained that its rights, derived from both
substantive and procedural obligations, were “under immediate threat of
serious and irreparable prejudice”; whereas it submitted that, in order for
provisional measures to be indicated, the jurisprudence of the Court
required only that there should be a serious risk that irreparable prejudice
or damage might occur; whereas it contended that the site chosen for the two
plants was “the worst imaginable in terms of protection of the river and the
transboundary environment”; whereas it argued that environmental damage was,
at the least, “a very serious probability” and would be irreparable; whereas
it submitted that economic and social damage would also result and would be
impossible to assess; whereas it further contended that the construction of
the mills “[was] already having serious negative effects on tourism and
other economic activities of the region”, including suspension of investment
in tourism and a drastic decline in real estate transactions; whereas it
maintained, referring to the Orders of 17 August 1972 in the Fisheries
Jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v.
Iceland) cases, that “any dismantling of the mills once built could not
‘restore’ Argentina’s rights concerning the protection of the riverine
environment” and that, with respect to rights derived from procedural
obligations, following the construction of the mills, there would “no longer
be any obligation to be discharged”;
36. Whereas Argentina submitted that Uruguay’s actions “irreversibly
prejudice[d] not only Argentina’s rights but also the functioning of [the]
Court, which [had] been given a central role by Articles 12 and 60 of the
[1975] Statute”; whereas Argentina contended that the Court should be
allowed to settle the dispute “without the final judgment on the merits
having been prejudiced by Uruguay’s unilateral acts”;
37. Whereas Argentina further observed that, according to the Court’s
jurisprudence, provisional measures are justified only if there is urgency
in the sense that action prejudicial to the rights of either party is likely
to be taken before a final decision is given; whereas it argued that “when
there is a reasonable risk that the damage cited may occur before delivery
of judgment on the merits, the requirement of urgency broadly merges with
the condition [of the] existence of a serious risk of irreparable prejudice
to the rights in issue”; whereas it contended that there was no doubt that
this condition was satisfied since the construction of the mills was
“underway and advancing at a rapid rate”; whereas it claimed that the
construction itself of the mills was causing “real and present damage”;
whereas it noted that the mills “would patently be commissioned before [the
Court] [would be] able to render judgment” since commissioning was scheduled
for August 2007 for Orion and June 2008 for CMB;
38. Whereas Argentina reiterated that the Court should order the suspension
of works on the Orion plant and the continuation of the suspension of works
on the CMB plant; whereas it observed that continued construction of the
plants in breach of the obligations under Chapter II of the 1975 Statute
would “quite simply render those obligations illusory”; whereas it pointed
out that suspension was the only measure capable of preventing the choice of
sites for the plants becoming a fait accompli; whereas it submitted,
referring to the jurisprudence of the Court, that suspension should be
imposed in order to avoid aggravating the economic and social damage caused
by the construction of the plants; whereas it claimed that suspension would
avoid prejudging the rights of both Parties; whereas it noted that
suspension would safeguard the jurisdiction of the Court under the 1975
Statute; whereas it observed that suspension was physically possible since
construction was at an initial stage and that it was a reasonable measure in
the circumstances; and whereas it pointed out that the President of Uruguay
had accepted the principle of suspension of the works when, following his
meeting with his Argentine counterpart on 11 March 2006, he asked ENCE and
Botnia to suspend work;
39. Whereas Argentina also reiterated that the Court should order Uruguay to
co-operate in good faith with Argentina in accordance with the legal régime
of the River Uruguay, which is based on “mutual trust” between the two
States and a “community of interest” organized around respect for the rights
and duties strictly prescribed by the 1975 Statute;
40. Whereas Argentina further reiterated that the Court should order Uruguay
to refrain from any further unilateral actions concerning the construction
of the CMB and Orion mills and any other action which might aggravate the
dispute; whereas it recalled in this regard that Uruguay had recently
authorized the construction of a dedicated port for the Orion mill in
defiance of the 1975 Statute and that a plan to construct a third mill on a
tributary of the River Uruguay had been announced;
*
41. Whereas Uruguay stated in its first round of oral observations that it
had “fully complied with the 1975 Statute of the River Uruguay throughout
the period in which this case has developed”; whereas it argued that
Argentina’s request was unfounded, that the requisite circumstances for a
request for provisional measures were entirely lacking and that “the
adoption of the requested measures would have irreparable, disastrous
consequences on Uruguay’s rights and on the future of its peoples”;
42. Whereas Uruguay noted that it did not dispute that Article 60 of the
1975 Statute constituted a prima facie basis for the jurisdiction of the
Court to hear Argentina’s request for the indication of provisional
measures; whereas Uruguay pointed out, however, that this provision
establishes the Court’s jurisdiction only in relation to Argentina’s claims
concerning the 1975 Statute; whereas it contended that in this case
“any dispute relating to the possible effects of the mills other than those
relating to any impairment of the quality of the river waters, or indeed
other than those stemming directly from such impairment by cause and effect,
is clearly not covered ratione materiae by the compromissory clause in
Article 60 of the Statute”;
whereas Uruguay cited as examples of disputes not falling within the Court’s
jurisdiction those concerning “tourism, urban and rural property values,
professional activities, unemployment levels, etc.” in Argentina, and those
regarding other aspects of environmental protection in transboundary
relations between the two States;
43. Whereas Uruguay contended that Argentina’s request for the indication of
provisional measures must be rejected because the breaches of the Statute of
which Uruguay is accused “prima facie lack substance” and Argentina’s claim
“has no serious prospect of success”; whereas Uruguay argued that, in
“applying both the highest and the most appropriate international standards
of pollution control to these two mills”, it had “met its obligations under
Article 41 of the Statute”; whereas Uruguay further stated that it had
“discharged the obligations imposed upon it by Articles 7 et seq. [of the
1975 Statute] in good faith”; whereas Uruguay contended in particular, that
those Articles did not give either party a “right of veto” over the
implementation by the other party of industrial development projects, but
were confined to imposing on the parties an obligation to engage in a full
and good-faith exchange of information under the procedures provided by the
Statute or agreed between them; whereas Uruguay further contended that it
was the first time “in the 31 years since the [1975] Statute came into
being” that Argentina had claimed it had “a procedural right under the
Statute, not only to receive notice and information and to engage in good
faith negotiations, but to block Uruguay from initiating projects during
[the] procedural stages and during any litigation that might ensue”; whereas
Uruguay moreover stated that the dispute between Uruguay and Argentina over
the pulp mills had in reality been settled by an agreement entered into on 2
March 2004 between the Uruguayan Minister for Foreign Affairs and his
Argentine counterpart; whereas Uruguay explained that the two Ministers had
agreed, first, that the CMB mill could be built according to the Uruguayan
plan, secondly, that Uruguay would provide Argentina with information
regarding its specifications and operation and, thirdly, that CARU would
monitor the quality of the river water once the mill became operational in
order to ensure compliance with the Statute; and whereas Uruguay added that
the existence of this agreement had been confirmed a number of times, inter
alia by the Argentine Minister for Foreign Affairs and by the Argentine
President, and that its terms had been extended so as to apply also to the
projected Orion mill;
44. Whereas Uruguay further contended that the Court must reject Argentina’s
request for the indication of provisional measures because there was no
current or imminent threat to any right of Argentina, so that the conditions
of risk of irreparable harm and urgency were not fulfilled;
45. Whereas Uruguay explained, in support of its position, that the
environmental impact assessments so far undertaken, as well as those to
come, and the regulatory controls and strict licensing conditions imposed by
Uruguayan law for the construction and operation of the two mills,
guaranteed that they would not cause any harm to the River Uruguay or to
Argentina; whereas it added that the mills would abide by the strict
requirements imposed by “the latest European Union 1999 International
Pollution Prevention and Control (IPPC) recommendations, with which
compliance is required by all pulp plants in Europe by 2007”; whereas
Uruguay noted that this lack of risk of harm had been acknowledged by a
number of Argentine officials, including its representatives on CARU;
whereas Uruguay further observed that the Orion and CMB mills benefited from
technology far more modern, efficient and less polluting than many similar
mills operating in Argentina;
46. Whereas Uruguay also pointed out that the Orion and CMB mills would not
be operational before August 2007 and June 2008 respectively and that a
number of further conditions would have to be met before that stage was
reached, including the issue of various permits by DINAMA; and whereas
Uruguay concluded from this that, even if it were to be considered that the
operation of the mills might lead to “the contamination of the river”, the
gravity of the “alleged peril to Argentina” was not “sufficiently certain or
immediate as to satisfy the Court’s requirement that it be ‘imminent’ or
urgent”; whereas Uruguay further argued that, “if the situation were to
change”, it would always be possible for Argentina to submit a fresh request
for the indication of provisional measures to the Court under Article 75,
paragraph 3, of the Rules, “based on [the] new facts”;
47. Whereas Uruguay further stressed the distinction to be drawn between
construction of the mills and their operation; whereas it noted that
Argentina in its Application referred only to risks deriving from the mills’
operation, not their construction; whereas Uruguay asserted that regular
monitoring of the water quality since construction work began had confirmed
that the work had not caused any pollution of the river; whereas it further
argued that, while Argentina in its oral pleadings now contended that the
construction itself of the mills caused an injury to the Argentine economy,
including to its tourism and property sectors, Argentina nevertheless failed
to offer any evidence of such injury; whereas it pointed out that the Court
in any event lacked jurisdiction to indicate provisional measures aimed at
preventing harm of this type since the rights to which any such injury would
relate were not covered by the 1975 Statute, and that suspending the
construction work, as requested by Argentina, would furthermore not bring
relief; whereas Uruguay further maintained that construction of the mills
would not amount to a fait accompli liable to prejudice Argentina’s rights
and that it was for Uruguay alone to decide whether to proceed with
construction and thereby assume the risk of having to dismantle the mills in
the event of an adverse decision by the Court;
48. Whereas Uruguay lastly argued that suspending construction of the mills
would cause such an economic loss to the companies involved and their
shareholders that it would be highly likely to jeopardize the entire two
projects; whereas it maintained that the provisional measures sought by
Argentina would therefore irreparably prejudice Uruguay’s sovereign right to
implement sustainable economic development projects in its own territory;
and whereas it pointed out in this connection that the pulp mill projects
represented the largest foreign investment in Uruguay’s history, that
construction in itself would create many thousands of new jobs and that,
once in service, the mills would have “an economic impact of more than $350
million per year”, representing “an increase of fully 2 per cent in
Uruguay’s gross domestic product [GDP]”; whereas it contended that the Court
should take account in the present proceedings of the fact that Argentina
had aggravated the existing dispute by failing to prevent the blockade of
international bridges between Argentina and Uruguay, which had “caused
enormous damage to the Uruguayan economy”;
* *
49. Whereas in its second round of oral observations Argentina maintained
that, according to Article 42 of the 1975 Statute and established
international principles, the 1975 Statute covered not only the pollution of
the river, as claimed by Uruguay, but also pollution of all kinds resulting
from the use of the river as well as the economic and social consequences of
the mills;
50. Whereas Argentina strongly disputed Uruguay’s assertion that it had
prima facie fulfilled its obligations under the 1975 Statute; whereas it
submitted, inter alia, that the projects had never been formally notified to
CARU by Uruguay as required by Article 7 of the 1975 Statute and that
Uruguay had not provided adequate information to CARU or GTAN regarding the
pulp mills; whereas Argentina reiterated its contention that Article 9 of
the 1975 Statute established a “no construction” obligation; whereas in
support of this contention, citing a work by a Uruguayan author, Argentina
submitted that CARU could give “a valid decision only with the agreement of
the [delegation of each of the two States]”; whereas it asserted that there
was no bilateral agreement of 2 March 2004 to the effect that the
construction of the CMB mill could proceed as planned; whereas Argentina
contended that the arrangement reached at the meeting of that date between
the Ministers for Foreign Affairs of the two States was simply that Uruguay
would transmit all information on CMB to CARU and that CARU would begin
monitoring water quality in the area of the proposed site; whereas it
claimed that Uruguay failed to supply the information promised; whereas it
contested the interpretation given by Uruguay to the statements of
Argentina’s Minister for Foreign Affairs and its President and emphasized
that it took a “clear, consistent position”, demanding compliance with the
requirements of the 1975 Statute in the competent bodies, in bilateral
dealings and within CARU;
51. Whereas Argentina reiterated its claim that there was a serious risk of
irreparable prejudice to its rights; whereas it contended that the
environmental impact of the plants on the river had not yet been fully
considered; whereas it noted in this regard that the reports commissioned to
date by the International Finance Corporation (IFC), to which ENCE and
Botnia had applied for financing of the projects, including the Hatfield
Report (a study published in April 2006 by an independent group appointed by
the IFC), had concluded that there were many outstanding and serious issues;
whereas it emphasized that there was no definitive opinion of the IFC on the
environmental impact of the projects; whereas it contested Uruguay’s claim
that the projects would operate to the “highest international standards”,
noting, inter alia, that limits for emissions from the ENCE plant had been
authorized by Uruguay to be set at more than 12 times the average limits for
emissions for similar plants in Canada; whereas it considered that Uruguay’s
assertions in this regard were “[u]nsubstantiated, bold and erroneous”;
52. Whereas Argentina reiterated that the requirement of urgency was
satisfied; whereas it submitted that the construction of the mills itself
was capable of causing “significant damage” to Argentina and was already
doing so; whereas it contested Uruguay’s argument that the indication of
provisional measures would not improve the situation currently affecting the
Argentine bank of the river; whereas it maintained that the bringing into
service of the mills was imminent in judicial terms since this would occur
well before the Court rendered its judgment;
*
53. Whereas in its second round of oral observations, Uruguay noted that
“Argentina [did] not deny obtaining from Uruguay a substantial amount of
information through a variety of machinery and channels”, and that the
measures taken by Uruguay regarding the supply of information were “fully
supported by the CARU minutes”; whereas Uruguay reiterated its contention
that the 1975 Statute does not confer a “right of veto” upon the parties;
whereas in support of this contention Uruguay argued that in order to
resolve any “difficulties of interpretation caused by an incomplete text”,
it is necessary to turn to Article 31, paragraph 3, of the Vienna Convention
on the Law of Treaties, and in particular, to consider “any subsequent
practice from which important inferences can be drawn, making it possible to
identify the agreement between the parties on how to interpret the treaty in
question”; whereas according to Uruguay “the subsequent verbal agreement
between the two countries of 2 March 2004 made by their Foreign Ministers”
constituted a specific example of such subsequent practice excluding any
interpretation which would recognize a right of veto; whereas Uruguay
further reiterated that the bilateral agreement of 2 March 2004, whose
existence had been acknowledged by the President of the Argentine Republic,
clearly authorized construction of the mills;
54. Whereas, as regards the risk to the environment of the River Uruguay,
Uruguay first contended that the 1975 Statute did not require the parties to
prevent all pollution of the river, but only “to take appropriate measures
to prevent pollution of the river from reaching prohibited levels”; whereas
Uruguay again made the point that, in any event, its environmental impact
assessments showed no risk of significant harm to Argentina, or to the
quality or environment of the river; whereas it added that the criticisms in
the Hatfield Report, cited by Argentina, were not directed at the impact
assessments carried out by DINAMA, and that, moreover, “[w]hen the
assessments need[ed] improvement or when further information [was] required,
DINAMA [had] the power to require revision and . . . [had] shown that it
[was] quite ready to use that power”; whereas Uruguay reiterated that the
mills would use the safest and most up-to-date technology;
55. Whereas Uruguay further submitted that “it would be impossible for the
Court to indicate the provisional measures requested by Argentina –– the
suspension of construction –– without prejudging the merits in a way that
fundamentally and permanently prejudice[d] the very rights that Uruguay
[was] claiming in these proceedings”, namely the right “to proceed with
construction of the works pending the Court’s ultimate decision on the
merits”;
56. Whereas, in concluding its second round of oral observations, Uruguay
expressly reiterated “its intention to comply in full with the 1975 Statute
of the River Uruguay and its application” and repeated “as a concrete
expression of that intention . . . its offer of conducting continuous joint
monitoring with the Argentine Republic” regarding the environmental
consequences of the mills’ future operations; whereas Uruguay affirmed its
“intention to show scrupulous respect for the environment and for the entire
range of human rights of the Uruguayan and Argentine peoples through conduct
characterized by transparency, good faith and the willingness to engage in
co-operative, joint action” and “[made] a point of repeating that the two
mills [would] operate according to European Union standards for the industry
which are due to enter into force in Europe in 2007”;
***
57. Whereas in dealing with a request for provisional measures, the Court
need not finally satisfy itself that it has jurisdiction on the merits of
the case, but will not indicate such measures unless the provisions invoked
by the applicant appear, prima facie, to afford a basis on which the
jurisdiction of the Court might be established (see Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J.
Reports 2002, p. 241, para. 58);
58. Whereas Uruguay does not deny that the Court has jurisdiction under
Article 60 of the 1975 Statute; whereas it asserts, however, that such
jurisdiction exists prima facie only with regard to those aspects of
Argentina’s request that are directly related to the rights Argentina is
entitled to claim under the 1975 Statute; whereas in this regard Uruguay
insists that rights claimed by Argentina relating to any alleged
consequential economic and social impact of the mills, including any impact
on tourism, are not covered by the 1975 Statute;
59. Whereas the Parties are in agreement that the Court has jurisdiction
with regard to the rights to which Article 60 of the 1975 Statute applies;
whereas the Court does not need at this stage of the proceedings to address
this further issue raised by Uruguay; and whereas the Court concludes,
therefore, that it has prima facie jurisdiction under Article 60 of the 1975
Statute to deal with the merits and thus may address the present request for
provisional measures;
***
60. Whereas Article 41 of the Statute authorizes the Court “to indicate . .
. any provisional measures which ought to be taken to preserve the
respective rights of either party”;
61. Whereas the power of the Court to indicate provisional measures has as
its object to permit the Court to preserve the respective rights of the
parties to a case “[p]ending the final decision” in the judicial
proceedings, provided such measures are necessary to prevent irreparable
prejudice to the rights that are in dispute;
62. Whereas the power of the Court to indicate provisional measures to
maintain the respective rights of the parties is to be exercised only if
there is an urgent need to prevent irreparable prejudice to the rights that
are the subject of the dispute before the Court has had an opportunity to
render its decision (see Passage through the Great Belt (Finland v.
Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991,
p. 17, para. 23; Certain Criminal Proceedings in France (Republic of the
Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports
2003, p. 107, para. 22);
63. Whereas, according to Argentina, its request for provisional measures
seeks to preserve its rights under the 1975 Statute in relation to
obligations of a procedural character and obligations of a substantive
character;
64. Whereas the procedural obligations, according to Argentina, correspond
to its rights to be fully informed and consulted with regard to construction
activities affecting the river, to be given the opportunity of objecting to
a particular project and, in the event of any such objection, to have access
to effective dispute settlement in this Court before any construction work
is authorized; and whereas Argentina also contends that the community of
interest and mutual trust on which the 1975 Statute is based requires
Uruguay to co-operate in good faith with Argentina in complying with the
legal régime the 1975 Statute provides for the River Uruguay;
65. Whereas Argentina claims that the substantive obligations the 1975
Statute imposes on Uruguay consist, first, of an obligation not to allow any
construction before the requirements of the 1975 Statute have been met; and,
second, of an obligation not to cause environmental pollution or
consequential economic and social harm, including losses to tourism;
66. Whereas Argentina claims that the suspension which it asks the Court to
order, both of the authorization to construct the mills and of the
construction work itself, would avoid irreparable prejudice to its rights
under the 1975 Statute; whereas in Argentina’s view, if such suspension is
not ordered, its right to have the procedure set out in Chapter II complied
with would “become purely theoretical” and “the possibility of exercising
that right would be lost forever”; whereas Argentina next contends that
suspension is the only measure that can prevent the choice of sites for the
location of the mills from becoming a “fait accompli”; whereas Argentina
also asserts that suspension would avoid aggravating the consequential
economic and social damage being caused by the construction of the plants;
whereas Argentina contends further that if the construction of the mills is
not suspended, their subsequent dismantling, once they have been built,
would not be capable of restoring Argentina’s rights “concerning the
protection of the riverine environment”; and whereas Argentina finally
claims that the provisional measures requested with regard to the suspension
of the construction of the mills are urgently needed since both plants would
be commissioned before the Court will be able to render judgment in the
case;
67. Whereas Uruguay argues that it has fully complied with its procedural
and substantive obligations under the 1975 Statute; whereas it asks the
Court in particular to preserve its sovereign right, pending a decision of
the Court on the merits of the case, to implement sustainable economic
development projects on its own territory that do not, in its view, violate
Uruguay’s obligations under the 1975 Statute or the anti-pollution standards
of CARU; whereas it maintains that any suspension of its authorization to
construct the mills on the River Uruguay or actual suspension of the works
would irreparably damage its right under the 1975 Statute to proceed with
those projects;
* *
68. Whereas Argentina’s request for provisional measures can be divided into
two parts, the one relating to the request for suspension and the other to
the request for other measures conducive to ensuring co-operation between
the Parties as well as the non-aggravation of the dispute; whereas in the
first part of its request Argentina asks the Court to order the suspension
of all authorizations for the construction of the CMB and Orion mills, the
suspension of the building work on the Orion mill, and the adoption of all
necessary measures to ensure the suspension of the work on the CMB mill
beyond 28 June 2006; whereas in the second part of its request Argentina
asks the Court to order Uruguay to co-operate with Argentina in good faith
in protecting and preserving the aquatic environment of the River Uruguay,
to refrain from taking any further unilateral action with respect to the
construction of the two mills incompatible with the 1975 Statute; and also
to refrain from any other action that might aggravate the dispute which is
the subject-matter of the present proceedings or render its settlement more
difficult;
69. Whereas the Court will first address Argentina’s requests directed at
the suspension of the authorizations to construct the pulp mills and the
suspension of the construction work itself;
70. Whereas, as regards the rights of a procedural nature invoked by
Argentina, the Court leaves to the merits the question of whether Uruguay
may have failed to adhere fully to the provisions of Chapter II of the 1975
Statute when it authorized the construction of the two mills; whereas the
Court is not at present convinced that, if it should later be shown that
Uruguay had failed, prior to the present proceedings or at some later stage,
fully to adhere to these provisions, any such violations would not be
capable of being remedied at the merits stage of the proceedings;
71. Whereas in this connection, the Court has taken note of the
interpretation of the 1975 Statute advanced by Argentina to the effect that
it provides for a “no construction” obligation, that is to say that it
stipulates that a project may only proceed if agreed to by both parties or
that, lacking such agreement, it shall not proceed until the Court has ruled
on the dispute; whereas, however, the Court does not have to consider that
issue for current purposes, since it is not at present convinced that, if it
should later be shown that such is the correct interpretation of the 1975
Statute, any consequent violations of the Statute that Uruguay might be
found to have committed would not be capable of being remedied at the merits
stage of the proceedings;
72. Whereas, as regards the rights of a substantive nature invoked by
Argentina, the Court recognizes the concerns expressed by Argentina for the
need to protect its natural environment and, in particular, the quality of
the water of the River Uruguay; whereas the Court recalls that it has had
occasion in the past to stress in the following terms the great significance
it attaches to respect for the environment:
“the environment is not an abstraction but represents the living space, the
quality of life and the very health of human beings, including generations
unborn. 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 corpus
of international law relating to the environment.” (Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp.
241-242, para. 29; see also Gabčíkovo-Nagymaros Project (Hungary/Slovakia),
I.C.J. Reports 1997, p. 78, para. 140);
73. Whereas, in the Court’s view, there is however nothing in the record to
demonstrate that the very decision by Uruguay to authorize the construction
of the mills poses an imminent threat of irreparable damage to the aquatic
environment of the River Uruguay or to the economic and social interests of
the riparian inhabitants on the Argentine side of the river;
74. Whereas Argentina has not persuaded the Court that the construction of
the mills presents irreparable damage to the environment; whereas it has
also not been demonstrated that the construction of the mills constitutes a
present threat of irreparable economic and social damage; whereas,
furthermore, Argentina has not shown that the mere suspension of the
construction of the mills, pending final judgment on the merits, would be
capable of reversing or repairing the alleged economic and social
consequences attributed by Argentina to the building works;
75. Whereas Argentina has not provided evidence at present that suggests
that any pollution resulting from the commissioning of the mills would be of
a character to cause irreparable damage to the River Uruguay; whereas it is
a function of CARU to ensure the quality of water of the river by regulating
and minimizing the level of pollution; whereas, in any event, the threat of
any pollution is not imminent as the mills are not expected to be
operational before August 2007 (Orion) and June 2008 (CMB);
76. Whereas on the basis of the present evidence before it the Court is not
persuaded by the argument that the rights claimed by Argentina would no
longer be capable of protection if the Court were to decide not to indicate
at this stage of the proceedings the suspension of the authorization to
construct the pulp mills and the suspension of the construction work itself;
77. Whereas, in view of the foregoing, the Court finds that the
circumstances of the case are not such as to require the indication of a
provisional measure ordering the suspension by Uruguay of the authorization
to construct the pulp mills or the suspension of the actual construction
work;
78. Whereas in proceeding with the authorization and construction of the
mills, Uruguay necessarily bears all risks relating to any finding on the
merits that the Court might later make; whereas the Court points out that
their construction at the current site cannot be deemed to create a fait
accompli because, as the Court has had occasion to emphasize, “if it is
established that the construction of works involves an infringement of a
legal right, the possibility cannot and should not be excluded a priori of a
judicial finding that such works must not be continued or must be modified
or dismantled” (Passage through the Great Belt (Finland v. Denmark),
Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 19,
para. 31);
*
79. Whereas the Court will now turn to the remaining provisional measures
sought by Argentina in its request;
80. Whereas the present case highlights the importance of the need to ensure
environmental protection of shared natural resources while allowing for
sustainable economic development; whereas it is in particular necessary to
bear in mind the reliance of the Parties on the quality of the water of the
River Uruguay for their livelihood and economic development; whereas from
this point of view account must be taken of the need to safeguard the
continued conservation of the river environment and the rights of economic
development of the riparian States;
81. Whereas the Court recalls in this connection that the 1975 Statute was
established pursuant to the 1961 Montevideo Treaty defining the boundary on
the River Uruguay between Argentina and Uruguay; whereas it is not disputed
between the Parties that the 1975 Statute establishes a joint machinery for
the use and conservation of the river; whereas the Court observes that the
detailed provisions of the 1975 Statute, which require co-operation between
the parties for activities affecting the river environment, created a
comprehensive and progressive régime; whereas of significance in this regard
is the establishment of CARU, a joint mechanism with regulatory, executive,
administrative, technical and conciliatory functions, entrusted with the
proper implementation of the rules contained in the 1975 Statute governing
the management of the shared river resource; whereas the Statute requires
the parties to provide CARU with the necessary resources and information
essential to its operations; whereas the procedural mechanism put in place
under the 1975 Statute constitutes a very important part of that treaty
régime;
82. Whereas, notwithstanding the fact that the Court has not been able to
accede to the request by Argentina for the indication of provisional
measures ordering the suspension of construction of the mills, the Parties
are required to fulfil their obligations under international law; whereas
the Court wishes to stress the necessity for Argentina and Uruguay to
implement in good faith the consultation and co-operation procedures
provided for by the 1975 Statute, with CARU constituting the envisaged forum
in this regard; and whereas the Court further encourages both Parties to
refrain from any actions which might render more difficult the resolution of
the present dispute;
83. Whereas the Court recalls, in this regard that, as stated above (see
paragraph 56), the Agent of Uruguay, inter alia, reiterated at the
conclusion of the hearings the “intention [of Uruguay] to comply in full
with the 1975 Statute of the River Uruguay and its application” and repeated
“as a concrete expression of that intention . . . its offer of conducting
continuous joint monitoring with the Argentine Republic”;
84. Whereas, having regard to all the above considerations, and taking note,
in particular, of these commitments affirmed before the Court by Uruguay,
the Court does not consider that there are grounds for it to indicate the
remaining provisional measures requested by Argentina;
***
85. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas it leaves
unaffected the right of Argentina and of Uruguay to submit arguments in
respect of those questions;
86. Whereas this decision also leaves unaffected the right of Argentina 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;
***
87. For these reasons,
THE COURT,
By fourteen votes to one,
Finds that the circumstances, as they now present themselves to the Court,
are not such as to require the exercise of its power under Article 41 of the
Statute to indicate provisional measures.
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Torres Bernárdez;
AGAINST: Judge ad hoc Vinuesa.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirteenth day of July, two thousand and six,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Argentine Republic and
the Government of the Eastern Republic of Uruguay, respectively.
(Signed) Rosalyn HIGGINS,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge RANJEVA appends a declaration to the Order of the Court; Judges
ABRAHAM and BENNOUNA append separate opinions to the Order of the Court;
Judge ad hoc VINUESA appends a dissenting opinion to the Order of the Court.
(Initialled) R.H.
(Initialled) Ph.C. [p136]
DECLARATION OF JUDGE RANJEVA
[Translation]
[1] I agree with the conclusion of the Court that there is no reason to
indicate the provisional measures requested by the Applicant. However, I am
not entirely satisfied with the approach adopted by the Court, which
emphasizes the limits of the Applicant's arguments and criticizes it for not
providing sufficient supporting evidence. While such an observa¬tion may
seem to be justified by the facts, it is not entirely satisfactory with
regard to the framework applying to the indication of provisional measures.
The Judgment in the LaGrand (Germany v. United States of America) case
highlighted the obligation upon the Parties to comply with the provisional
measures indicated by the Court; this reminder helped to dispel the
ambiguity surrounding the issue of the applicability of the provisions of
Article 94 of the United Nations Charter to orders indicating provisional
measures. These are judicial decisions binding on the parties, pending the
final judgment.
[2] Consideration of the urgency, from the perspective of the risk of
irreparable prejudice in the event of the non-indication of provisional
measures, represents the central focus of an order and lies at the heart of
its general scheme. However, the binding nature of the decision indi¬cating
provisional measures obliges the Court to ensure that it cannot be viewed as
a provisional judgment capable of prejudging future scrutiny of and findings
on the merits. An examination of the effects of the measures is not, in
itself, sufficient to prevent such a possibility; that examination must also
be supported by an analysis of the very purpose of the measures requested.
[3] It is for the Court to compare in limine the purpose of those measures
with that sought through the principal proceedings and thus to dismiss
direct, or in some cases indirect, requests that would, in reality, result
in a provisional judgment. Such an approach will, first, help to clarify the
relationship between the incidental proceedings and the principal
proceedings so as to ensure that the Court, when ruling on the merits, is
not bound by the provisional measures and, secondly, to limit the incidental
proceedings to an examination of only the urgent parts of the request.
(Signed) Raymond RANJEVA [p137]
SEPARATE OPINION OF JUDGE ABRAHAM
[Translation]
1. I fully subscribe to the conclusion reached by the Court in the present
Order, i.e., that indicating the provisional measures requested by the
Applicant would not have been justified under the circumstances as they now
stand. There is however a question of principle in respect of which I do not
find the reasoning in the Order sufficiently explicit: the question of the
relationship between the merit, or prima facie merit, of the arguments
asserted by the party requesting the measures in respect of the right that
it claims, which is the subject-matter of the main proceedings, and the
ordering of the urgent measures it seeks from the Court.
2. I am well aware that the Court was not required to address this
much-debated issue in detail, since the circumstances of the case are such
that it could base its decision in law on grounds which were both necessary
and sufficient, without the need to decide a point which, while argued by
the Parties, could be deferred without impairing the coherence or
completeness of the reasoning adopted in reaching the decision rendered.
I am of course not opposed to a certain economy of reasoning, and I do not
think it within the Court's duties to propound a general theory on each and
every issue argued in the cases before it.
Yet I think that the Court, without departing too far from the sound rule
mandating good husbandry of resources, could in the present case have seized
the opportunity presented by this Order to shed some light on a question
which — it must be admitted — remains quite abstruse.
By means of the following observations, I wish to contribute to the exercise
in clarification which the Court itself will inevitably be required sooner
or later to see through to completion.
3. The debate is not new and several of my distinguished predecessors have
endeavoured in the past to elucidate the crux of it. In truth, my view of
the question is not significantly at variance with, for example, that set
out by Judge Shahabuddeen in his separate opinion appended to the Order of
29 July 1991 made by the Court in the case concerning Passage through the
Great Belt (Finland v. Denmark) (Provisional Measures, I.C.J. Reports 1991,
pp. 28-36), and I could nearly confine myself to referring the reader to
that opinion. I should like however to add the fol¬lowing comments, which
take account in particular of developments in the Court's jurisprudence on
provisional measures over recent years.
4. According to a widespread view, and perhaps even that of a majority of
the writers, the Court, when called upon to rule on a request for the
indication of provisional measures under Article 41 of the Statute, should —
and does in fact — refrain from all consideration of the merit of the
arguments by the party requesting the measures, usually the Applicant in the
main action, in respect of the claimed rights for which it seeks protection
through the measures. The Court should — and does in fact — confine itself
to ascertaining whether the circumstances are such that the rights claimed,
the existence or non-existence of which cannot be determined until the
conclusion of the main action, are in danger of irreparable injury in the
absence of measures for their interim protection pending the final decision.
In other words, the Court should proceed on the basis that the claimed
rights do in fact exist and it should consider solely whether, on the
assumption that it will ultimately uphold them in its decision on the
merits, they are liable to be violated in the interim in such way that the
final judgment will be rendered ineffective, at least in part.
5. This definition of the role of a court asked to grant interim relief —
which describes the Court when exercising its power under Article 41 of the
Statute — is premised on a sharp, clear separation between, on the one hand,
issues as to the existence and extent of the disputed rights, issues which
cannot be considered, even prima facie, or resolved, even provisionally,
before the merits phase, and, on the other, questions as to the need for
provisional measures, which can and should be assessed by the Court without
any thought to the merit of the arguments advanced in the main proceedings.
I find this separation illusory; even if it were possible, it would be
undesirable. Here is why I consider the writers' view I have just summarized
to be wrong.
6. The main reason is that the Court is never, and in all logic can never
be, confronted solely with rights asserted by only one of the parties,
rights which it could (provisionally) assume to be established exclusively
for purposes of ruling as to whether they require protection.
When acting on a request for the indication of provisional measures, the
Court is necessarily faced with conflicting rights (or alleged rights),
those claimed by the two parties, and it cannot avoid weighing those rights
against each other. On one side stands (stand) the right (rights) asserted
by the requesting party, which it claims to be under threat and for which it
seeks provisional protection, and on the other the right(s) of the opposing
party, consisting at a minimum in every case of the fundamental right of
each and every sovereign entity to act as it chooses provided that its
actions are not in breach of international law. Yet the measure sought by
the first party from the Court often — as in the present case — consists of
enjoining the other party to take an action which it does not wish to take
or to refrain — temporarily — from taking an action which it wishes, and
indeed intended, to take. In issuing such injunctions, the Court necessarily
encroaches upon the respondent's sovereign rights, circumscribing their
exercise. True, there is nothing out of the ordinary about a judicial body
imposing on a party a specific obliga¬tion as to conduct, but the obligation
thus imposed must rest on sufficiently solid legal ground, especially when
the party in question is a sovereign State. In other words, I find it
unthinkable that the Court should require particular action by a State
unless there is reason to believe that the prescribed conduct corresponds to
a legal obligation (and one predating the Court's decision) of that State,
or that it should order a State to refrain from a particular action, to hold
it in abeyance or to cease and desist from it, unless there is reason to
believe that it is, or would be, unlawful.
7. In this regard one cannot help but see a connection between the issue
under discussion here and the Court's affirmation in its Judgment of 27 June
2001 in LaGrand (Germany v. United States of America) (Judgment, I.C.J.
Reports 2001, p. 466) of the mandatory nature of measures prescribed by the
Court in its Orders under Article 41 of the Statute.
8. Until that Judgment was handed down, many, if not most, States, along
with a very substantial body of scholarly opinion, thought that provisional
measures indicated by the Court were recommendations lacking binding force.
Although serious doubt can be entertained as to the proposition that even
before the LaGrand Judgment the Court, in making an order indicating
provisional measures, was in practice indifferent to the prima facie merit
of the parties' arguments in the main dispute, it could conceivably have
been accepted at that time that the Court did not consider the merits before
serving the parties with invitations to act — or to refrain from acting —
which were commonly but wrongly thought to be without mandatory force. Where
a mere suggestion is being made to a State, there is hardly any need to
ensure that it is not liable to trespass upon the sovereign rights of the
State: the recipient of the recommendation is free to act upon it as it
deems
On peut aussi se satisfaire du constat que le droit revendiqué n'est pas
manifestement inexistant, et qu'il n'est pas manifestement exclu, en l'état
des informations dont dispose la Cour au stade de la procédure où elle se
appropriate and, in determining its response, can factor in its assessment
of the strength of its position and the importance of the interests at
stake. In summary, the doctrine as to a clear separation of the issues on
the merits from those concerning provisional protection, which I have always
found to be misguided, might conceivably have been seen as in keeping with
the widespread belief, before the LaGrand Judgment, that the Court's orders
were not binding.
With the Judgment of 27 June 2001, that ceased to be the case. It is now
clear that the Court does not suggest: it orders. Yet, and this is the
crucial point, it cannot order a State to conduct itself in a certain way
simply because another State claims that such conduct is necessary to
preserve its own rights, unless the Court has carried out some minimum
review to determine whether the rights thus claimed actually exist and
whether they are in danger of being violated — and irreparably so — in the
absence of the provisional measures the Court has been asked to prescribe:
thus, unless the Court has given some thought to the merits of the case.
9. Carrying out some minimum review, or giving some thought to the
substance, obviously does not mean arriving at a complete, final view as to
the merits of the dispute which the Court will — perhaps — later have to
decide. It is self-evident that it is neither possible nor desirable for the
Court to develop a firm opinion about the case, let alone to express one,
during the first phase of the proceedings. But, in conducting some review,
by nature limited, of the prima facie validity of the requesting party's
case, the Court does not overstep the bounds of its mission as a
jurisdiction appealed to for interim relief; on the contrary, it is sensibly
fulfilling that mission. The existence of fumus boni juris as a requisite
for the ordering of binding provisional measures is firmly recognized by
some international courts (for example, the Court of Justice of the European
Communities; see, inter alia, the interesting order of the President of the
CJEC dated 19 July 1995 in Commission v. Atlantic Container Line AB and
Others, C-149/95), as well as in many national judicial systems. In fact, it
is inescapable, mandated as it were by logic.
10. Admittedly, this requirement can be defined in terms of varying
strictness.
The party requesting the measures might be required to show the prima facie
validity of its claims on the merits, i.e., to establish a particular degree
of probability that it holds the right claimed and a particular degree of
probability that the right is likely to be infringed through the other
party's conduct. This is a rather exacting approach and I am not sure of the
need to go this far.
It might be enough to ascertain that the claimed right is not patently
non-existent and that, according to the information available to the Court
at the particular stage in the proceedings, the possibility of the other
party's conduct infringing that right is not manifestly to be ruled out. The
requirement of fumus boni juris then gives way to that of fumus non mali
juris. But, in all honesty, these are subtleties and there exists a great
range of intermediate degrees, each capable of expression in somewhat vague
terms : the requesting party should establish the possible existence of the
right claimed, or the apparent existence of such right, etc.
In my view, the most important point is that the Court must be satisfied
that the arguments are sufficiently serious on the merits — failing which it
cannot impede the exercise by the respondent to the request for provisional
measures of its right to act as it sees fit, within the limits set by
international law.
11. To sum up, I would say that the Court must satisfy itself of three
things before granting a measure ordering the respondent to act or to
refrain from acting in a particular way, so as to safeguard a right claimed
by the applicant.
Firstly, that there is a plausible case for the existence of the right.
Secondly, that it may reasonably be argued that the respondent's conduct is
causing injury, or is liable to cause imminent injury, to the right.
Thirdly and finally, that the circumstances of the case are such that
urgency justifies a protective measure to safeguard the right from
irreparable harm.
12. As these three requirements are cumulative, the Court is not always
compelled to rule on the satisfaction of each: where any one remains unmet,
the Court is relieved of the need to examine the other two.
13. This is especially the case when the third requirement is not satisfied
: where urgency has not been shown, it does not matter whether the
respondent is violating the applicant's rights; that issue does not
reacquire relevance until the merits are considered. In the present case,
the Court has essentially based its decision on the lack of urgency and the
absence of any demonstrated danger of irreparable harm, thus making it
possible to avoid most of the issues on the merits, and I am in full
agreement with this approach.
(Signed) Ronny Abraham [p142]
SEPARATE OPINION OF JUDGE BENNOUNA
[Translation]
Relationship between the principal proceedings and the request for the
indication of provisional measures — Safeguard of rights and preservation of
status quo — Violation of rights and risk of irreparable prejudice —
Parties' agreement to a prima facie examination by the Court of the
existence of the rights at issue — Circumstances authorizing the Court to
rule prima facie on the existence of the rights at issue — The Court avoided
a debate on the rights.
1. Although I voted in favour of the operative part of the Order adopted by
the Court, I cannot fully accept the process of reasoning from which it
sprang. In particular, I regret that the Court did not take the opportunity
offered to it in this case to clarify the relationship between the principal
proceedings and the request for the indication of provisional measures.
That relationship is inescapable, as was clearly stated by the Court in the
case concerning United States Diplomatic and Consular Staff in Tehran :
"whereas, moreover, a request for provisional measures must by its very
nature relate to the substance of the case since, as Article 41 expressly
states, their object is to preserve the respective rights of either party;
and whereas in the present case the purpose of the United States request
appears to be not to obtain a judgment, interim or final, on the merits of
its claims but to preserve the substance of the rights which it claims
pendente lite" (United States Dip¬lomatic and Consular Staff in Tehran
(United States of America v. Iran), Provisional Measures, Order of 15
December 1979, I.C.J. Reports 1979, p. 16, para. 28).
2. The Court's jurisprudence has made it clear that the protection of the
rights of each party is ensured by means of provisional measures adopted as
a matter of urgency with a view to preventing irreparable prejudice from
nullifying the rights at issue which have been flouted. The aim is
undoubtedly to preserve the status quo and to make sure that there is no
"aggravation or extension of the dispute", to use the Court's termi¬nology.
Yet we have to ask ourselves whether this is to preserve the status quo
prevailing at the time of the seisin of the Court or to restore that which
existed prior to the Respondent's allegedly unlawful act[FN1]
----------------------------------------------------------------------------------------------------------------
[FN1] Even in this instance, the purpose of the provisional measure is still
to safeguard the right at issue in the dispute before the Court, since there
is no question of reparation for the prejudice at that stage, as was pointed
out by E. Dumbauld: "interim protection looks to the future" (Interim
Measures of Protection in International Controversies, 1932, p. 164).
----------------------------------------------------------------------------------------------------------------
3. If the latter is the case, the violation of protected rights of itself
carries the risk of irreparable prejudice and the Court can indicate
provisionally, as it did in the case concerning United States Diplomatic and
Consular Staff in Tehran, measures to restore the situation existing before
the allegedly unlawful act. The Court thus acknowledged prima facie the
existence of the rights claimed, the violation of which in itself
represented irreparable prejudice. In other words, the rights claimed by the
United States in the United States Diplomatic and Consular Staff in Tehran
case were presumed to exist, and the Court could more readily come to this
prima facie conclusion since Iran did not appear before it and did not have
the opportunity effectively to contest the rights concerned; and indeed
Article 53 of the Statute makes it easier for the Court to decide in favour
of the Applicant, in particular as regards the presumption in favour of the
rights claimed.
4. Similarly, the Court can avoid a debate as to the prima facie existence
of the rights to be protected, when it is not their actual existence but
their extent which is at issue.
Thus in the case concerning Passage through the Great Belt:
"the Court notes that the existence of a right of Finland of passage through
the Great Belt is not challenged, the dispute between the Parties being over
the nature and extent of that right, including its applicability to certain
drill ships and oil rigs" (Passage through the Great Belt (Finland v.
Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991,
p. 17, para. 22).
In the Nuclear Tests case, the Court was divided as to the existing legal
situation which needed to be preserved pendente lite, inter alia on the
scope of the right to carry out nuclear tests (Nuclear Tests (New Zealand v.
France), Interim Protection, Order of 22 June 1973, I.C.J Reports 1973, p.
135; see notably the dissenting opinions of Judges Forster and Petrén).
The issue raised by the request for the indication of provisional measures
filed by Argentina against Uruguay is more complex, since the two Parties
engaged in a full-scale debate before the Court as to the very existence of
the right claimed by Argentina, namely that authorization to build the pulp
mills could not be given, nor could work on the sites begin, without the
prior agreement of both States.
5. Should the Court not have taken this opportunity to consider whether, in
certain circumstances, it is not obliged to examine prima facie the
existence of the right concerned? Especially as this is an issue on which
both judges and doctrine are still divided (see the separate opinion of
Judge Shahabuddeen appended to the above Order of 29 July 1991 in the case
concerning Passage through the Great Belt (Finland v. Denmark), I.C.J.
Reports 1991, notably pp. 29 et seq.)
6. In my opinion, the Court could have addressed this issue, while taking
all necessary precautions to avoid being accused of having, in so doing,
prejudged the merits of the case. Argentina had not in any case asked the
Court to rule finally on part of its claims; it had merely proposed that the
status quo be maintained pending final judgment (in the Factory at Chorzow
case, the Court held that
"the request of the German Government cannot be regarded as relating to the
indication of measures of interim protection, but as designed to obtain an
interim judgment in favour of a part of the claim formulated in the
Application above mentioned" (Order of 21 November 1927, P.C.I.J., Series A,
No. 12, p. 10)).
7. The Parties were, moreover, agreed that the Court should rule prima facie
on the existence of the right claimed, that is to say the right whereby
construction work could not be commenced without their prior agreement — a
right described as "procedural". And indeed, foremost of the rights that
Argentina sought to safeguard in its request for provisional measures of 4
May 2006 was
"the right to ensure that Uruguay shall not authorize or undertake the
construction of works liable to cause significant damage to the River
Uruguay — a legal asset whose integrity must be safeguarded — or to
Argentina".
8. However, the issue of who, in the final analysis, authorizes such
construction, in the event of disagreement between the Parties as to what
constitutes "significant damage", remained unanswered.
In oral argument, Argentina expressed its interpretation of the Statute more
precisely:
"[W]here Argentina has objected to a project that is subject to the
requirements of the Statute — and it has, time and time again, in the
present case — Uruguay is not entitled to carry out any work at all. . .
Argentina has the clear right that Uruguay may not carry out any works.
Article 9 establishes a 'no construction' obligation. It is as simple as
that." (CR 2006/46, p. 31, para. 12 (Sands).)
9. Argentina effectively takes the view that, if the Parties differ over the
issue of whether a project is liable to cause significant damage to the
River Uruguay, there is a consequential obligation on Uruguay not to
authorize that project and a right on the part of Argentina that it should
not be authorized. Argentina accordingly argued that
"[t]he fact that Uruguay has allowed construction to continue . . . causes
irreparable damage not only to Argentina's rights but also . . . to the
effective functioning of this Court, which has a very signifi¬cant role in
the scheme established by the Statute" (CR 2006/46, p. 32, para. 14
(Sands)).
10. Uruguay, for its part, acknowledged that this is the crux of the debate
between the Parties over the indication of provisional measures :
"The last few days' proceedings have been revealing, because they have shown
up the real subject, or rather the very heart, of the dispute between the
Parties. The heart of the dispute is represented by the question whether,
yes or no, a right of veto exists under this Statute: in the last analysis
everything comes down to this.
However, it goes without saying that such a fundamental difference of
opinion cannot be settled by the Court at this stage of proceedings. The
fact remains that your Court is obliged to deal with it summarily now
because — it has to be said — it could not grant the provisional measures
requested unless it recognized, at least prima facie, that the Statute did
give the Parties a right of veto. If on the other hand, the Court were to
find that there were serious reasons for doubting this, the granting of
provisional measures would not be justified . . ." (CR 2006/49, pp. 19-20,
paras. 8-9 (Condorelli).)
11. In these circumstances, the Court should have examined the issue of the
prima facie existence of this right. It is, however, true that it would not
have been appropriate to settle the issue, even prima facie, if doubt
subsisted as a result of the possible complexity, ambiguity or silence of
the texts concerned (in particular the 1975 Statute of the River Uruguay),
making it impossible to decide at this stage between the Parties' differing
interpretations. In that case, all discussion would have to be postponed
until the merits stage. And that was precisely the situation in which the
Court found itself when faced with Argentina's request for a finding that it
had a right to make the works subject to joint authorization. Once a
decision had been reached as to the existence of the rights at issue, the
risk of irreparable prejudice and the indication or otherwise of provisional
measures should then have followed from this. There is therefore, in my
opinion, a link missing in the Court's reasoning, namely as to the prima
facie existence of the right claimed.
12. This link in the reasoning is significant, as the Parties themselves
recognized, since it determined the answer to be given to the request for
the indication of provisional measures, at least as far as the suspension of
construction was concerned. If the Court found prima facie that Uruguay
could not initiate the works without Argentina's consent, then Argentina's
right would need to be safeguarded urgently by the withdrawal of the
authorizations granted and the freezing of the situation on the ground. If,
however, the 1975 Statute — correctly interpreted in accordance with
accepted methods — and any later agreements did not permit of such a
response, then debate on the issue would be postponed until consideration of
the merits of the case.
13. The Court has chosen to evade the issue (whereas both Parties had
addressed it) by confining itself to stating that, if the right claimed by
Argentina had been violated, this did not mean that redress would not be
possible at the merits stage (paras. 70 and 71 of the Order) — in other
words, that the prejudice would not be irreparable. That, however, begs the
question, since, if the purpose of provisional measures is to preserve the
rights at issue, the Court must ensure that these are not simply ren¬dered
nugatory. What, then, would be the fate of Argentina's possible right of
consent in respect of the works if, having been authorized with¬out its
agreement, these could be continued to completion at a time when the Court
was already seised of the matter[FN2]? That right would have simply ceased
to exist and it is difficult to see what measure of redress could bring it
back to life again. True, the construction of these massive pulp mills is
not a "fait accompli" — as the Court has emphasized — but what do we know of
the short- and medium-term impact it will have on the area concerned, which
on the Argentine side of the border is due to be developed for tourism?
----------------------------------------------------------------------------------------------------------------
[FN1] In her commentary on Article 41 of the Statute, Karin Oellers-Frahm
pointed out that "what is to be preserved is the subject-matter of the
right, the factual use of the right which would be impossible if the
subject-matter were irreparably destroyed" (The Statute of the International
Court of Justice, ed. A. Zimmermann et al., 2006, p. 931).
----------------------------------------------------------------------------------------------------------------
14. The Court preferred not to raise the veil which, in its jurispru¬dence,
modestly conceals the rights at issue at this stage of the proceed¬ings. We
may conclude that it did so implicitly, without actually saying as much;
but, as in all things, its task could only benefit from being made explicit.
15. Would that involve a risk of the Court addressing now issues which
should properly be dealt with at the merits stage? I do not think so. Did
not the Parties debate the right at issue and request a decision from the
Court on a prima facie basis, while keeping within the time- limits allotted
to them, without ever effectively addressing the merits? And, once again, it
is all a question of dosage, of the extent to which the issues are
addressed, rather than a matter of their nature, given that the proceedings
on the request for provisional measures cannot be totally severed from the
principal proceedings, as the rights at issue form an indissoluble link
between them. The difference is that, in the case of the former, it is
sought to safeguard rights on a temporary basis while, for the latter, the
aim is to arrive at a final settlement of the disputes having arisen
regarding them.
16. That is why I regret that the Court failed to take this opportunity to
clarify that aspect of provisional measures. The fact remains that, since I
also considered that the evidence presented to the Court was insufficient
for it to determine prima facie whether the right claimed by Argentina
existed and I agreed with the rest of the Court's reasoning, I voted in
favour of the Order.
(Signed) Mohamed Bennouna.
DISSENTING OPINION OF JUDGE AD HOC VINUESA
I regret to fully disagree with the decision of the majority of the Court in
the operative part of the present Order. Even if the majority of the Court
was not persuaded to indicate the provisional measures as requested by the
Republic of Argentina, the “circumstances, as they now present themselves to
the Court” (Order, paragraph 87), and as argued by both Parties, are such
that the Court should have considered the indication of alternative
provisional measures in order to preserve the rights of each Party until
final judgment.
However, I partially agree with several of the considerations and findings
of the majority of the Court, as follows:
I do agree with the majority of the Court on the existence of prima facie
jurisdiction under Article 60 of the 1975 Statute.
I do agree with the majority of the Court that the decision given in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves.
I do agree with the majority’s finding that the evidence presented by
Argentina at this stage is not sufficient to prove that the authorization
and subsequent construction of the plants, in themselves, and just in
themselves, have already caused irreparable harm to the environment.
However, I strongly disagree with the Court’s finding that the construction
of the plants constitutes a neutral or innocent step without legal
consequences that shall not affect the future preservation of the
environment. As things stand today, and taking into account the evidence
provided by both Parties, the uncertainty of a risk of an imminent threat of
irreparable harm is inexorably linked to the present and continuing
construction of the mills.
I do agree with the majority of the Court when it “recognizes the concerns
expressed by Argentina for the need to protect its natural environment and,
in particular, the quality of the water of the River Uruguay” (Order,
paragraph 72).
I do agree with the majority of the Court when it recalls that the Court has
had occasion in the past to stress the great significance it attaches to
respect for the environment, and when it refers in this respect to the
relevant paragraphs of the Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons (I.C.J. Reports 1996 (I), pp. 241-242, para. 29) and
the Judgment in the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) case (I.C.J.
Reports 1997, p. 78, para. 140).
I do agree with the majority of the Court that, in proceeding with the
authorization and construction of the mills, Uruguay necessarily bears all
risks relating to any finding on the merits that the Court might later make.
I do agree with the majority of the Court that the construction of the mills
at the current site cannot be deemed to create a fait accompli.
I do agree with the majority of the Court that it is not disputed between
the Parties that the 1975 Statute establishes a joint machinery for the use
and conservation of the River Uruguay and that the procedural mechanism
provided for in the Statute constitutes a very important part of the treaty
régime.
I do agree with the finding by the majority of the Court that the Parties
are required to fulfil their obligations under international law, stressing
the necessity for Argentina and Uruguay to implement in good faith the
consultation and co-operation procedures provided for by the 1975 Statute,
and that CARU constitutes the envisaged forum for that purpose.
I do agree with the intention expressed by the majority of the Court to
encourage both Parties to refrain from any actions which might render more
difficult the resolution of the present dispute.
I do agree with the majority of the Court on the legal effects attributed to
the commitments, made by the Agent of Uruguay before the Court, to comply in
full with the 1975 Statute.
I do agree with the finding of the majority of the Court that the decision
leaves unaffected the right of Argentina to submit in the future a new
request for the indication of provisional measures under Article 75,
paragraph 3, of the Rules of Court.
* *
To my regret, I could not agree with the assessment by the majority of the
Court that the present case highlights the importance of the need to ensure
environmental protection of shared natural resources while allowing
sustainable economic development.
Neither of the two Parties has addressed the present dispute as a
confrontation between environmental protection rights, on the one hand, and
the right of States to pursue sustainable development, on the other hand. As
a matter of fact, such a confrontation does not exist even in abstract
terms.
To my understanding, and taking into account what both Parties have argued
at the stage of provisional measures, there is no doubt that the present
dispute concerns the scope of rights and duties established by the 1975
Statute of the River Uruguay, which is binding upon Argentina and Uruguay
since its entry into force on 18 September 1976.
Uruguay has not denied the duty of the Parties to protect the environment of
the River Uruguay, and Argentina, for its part, has not denied the right of
the Parties to sustainable development.
Both Parties agreed on the need for the 1975 Statute to be fully applied,
but differed on the scope of the respective rights and duties with regard to
the implementation of “the joint machinery necessary 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” (Article 1 of the Statute).
It is important to take into account that the Preamble of the 1975 Statute
of the River Uruguay proclaimed that the Governments of Uruguay and
Argentina were “motivated by the fraternal spirit inspiring the Treaty
concerning the Río de la Plata and the Corresponding Maritime Boundary
signed in Montevideo on 19 November 1973”.
Under Article 1 of the 1975 Statute, the Parties also recognized that this
Statute was the result of the implementation of Article 7 of the Treaty
concerning the Boundary of the River Uruguay, signed in Montevideo on 7
April 1961. The latter provision established the main objectives and
purposes of the 1975 Statute, which are no other than the joint regulation
of a régime for the navigation of the river, the conservation of its living
resources and the avoidance of pollution of the river waters.
All the above considerations are vital for the application of the 1975
Statute in deciding the merits of the present dispute, as well as in
determining the possibility for the Court to indicate provisional measures
in order to preserve the respective rights of the Parties.
*
Article 41, paragraph 1, of the Statute of the International Court of
Justice provides that:
“The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken
to preserve the respective rights of either party.”
It follows from this provision that, once the Court has satisfied itself of
the existence of its prima facie jurisdiction, it has to consider the
viability of the alleged rights that need to be preserved, pending a final
decision on the merits, and determine whether provisional measures are
necessary to prevent irreparable harm to the rights that are in dispute, and
that there is a degree of urgency in indicating them. I will address these
matters in turn.
*
With regard to the rights claimed, it should be recalled that the
provisional measures requested by Argentina were intended to preserve its
rights under the 1975 Statute from alleged violations by Uruguay of
procedural and substantive obligations imposed on it by the Statute.
The so-called procedural obligations under the 1975 Statute alleged by
Argentina to have been violated by Uruguay concerned the non-implementation
by Uruguay of the joint machinery that is required by Chapter II (Articles 7
to 12) when one party plans to carry out works (the pulp mills) which are
liable to affect navigation, the régime of the river or the quality of its
waters.
What Argentina calls the substantive obligations under the 1975 Statute
concerned the obligation not to allow any construction before the
requirements of the 1975 Statute have been met, and the obligation not to
cause environmental pollution or consequential economic or social harm.
Within the 1975 Statute, the relationship of obligations of a procedural and
of a substantive character is essential in the implementation of the
precautionary principle. Indeed, as clearly stated by Article 1, the joint
mechanism envisaged by the 1975 Statute is the necessary venue to obtain an
optimum and rational utilization of the River Uruguay. As explained above,
the main objectives and purposes of the 1975 Statute were predetermined by
Article 7 of the 1961 Montevideo Treaty, which conditioned the establishment
of the future Statute to regulate the navigation of the river, the
achievement of agreements on fisheries and the achievement of agreements to
avoid water pollution. The Statute is a clear example of the new boundary
river régimes that have developed a detailed procedure of co-operation among
riparian States, in order to implement substantial rights and obligations
for the use and conservation of a shared natural resource. The 1975 Statute
constitutes the institutional expression of a community of interests in
which substantive norms and principles are interwoven with procedural norms.
Procedures and substantive rules are melded in the accomplishment of the
objective and purpose of the 1975 Statute.
A clear distinction must be made between requests for provisional measures
which aim at preserving an alleged right, and those which, in a sense, aim
at repairing an alleged violation of a treaty obligation. In the latter
case, there is no chance to repair an alleged breach through the indication
of a provisional measure without prejudging the merits. It is obvious that
such a question remains to be solved at that later stage.
However, that does not apply for the actual and future implementation of a
joint mechanism pre-established by Chapter II of the 1975 Statute. In this
regard, the indication of provisional measures would be appropriate to
preserve the said procedural right, as well as the substantive right that is
intrinsically associated with it under the Statute, pending a final solution
on the merits.
*
Turning now to the question of urgency, the Court, in previous cases, has
determined that it is only empowered to indicate provisional measures if
there is an urgent need to prevent irreparable harm to rights that are the
subject of the dispute, before the Court has had the opportunity to render
its decision (see Passage through the Great Belt (Finland v. Denmark),
Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17 para.
23; Certain Criminal Proceedings in France (Republic of the Congo v.
France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p.
107, para. 22).
In the present proceedings, the precedent of the Passage through the Great
Belt (Finland v. Denmark) case has been invoked to allege that the Court
should deny the indication of provisional measures, given the absence of
urgency. It is true that, in that case, the Court found that the
circumstances were not such as to require the exercise of its power under
Article 41. The Court considered that if the construction works contemplated
by Denmark on the East Channel Bridge, which, it was claimed, would obstruct
Finland’s right of passage, had been expected to be carried out prior to the
decision of the Court on the merits, this might have justified the
indication of provisional measures. However, the Court, placing on record
the assurances given by Denmark that no physical obstruction of the East
Channel would occur before the end of 1994, and considering that the
proceedings on the merits in the case would, in the normal course, be
completed before that time, found that it had not been shown that the
claimed right of passage would have been infringed by those construction
works during the pendency of the proceedings (Passage through the Great Belt
(Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J.
Reports 1991, p. 18, paras. 26-27).
To my understanding, the simple and straightforward application of this same
criterion should have led the Court to conclude that the requisite of
“urgency” is fulfilled in the present case and that the Court should proceed
to indicate provisional measures.
It is a fact that, at the very least, the construction and operation of the
Orion project, as confirmed by Uruguay, is expected to be carried out by the
middle of 2007, obviously prior to any decision of this Court on the merits.
Inasmuch as there are no assurances by Uruguay that the mills will not be in
operation before the completion of the proceedings on the merits in the
present case, it follows that the rights the preservation of which is
requested by Argentina will be infringed by the construction works and by
the operation of the mills during the pendency of the proceedings.
*
With regard to the imminent threat of irreparable damage as a requirement
for the indication of provisional measures, the majority of the Court
considered that “Argentina has not provided evidence at present that
suggests that any pollution resulting from the commissioning of the mills
would be of a character to cause irreparable damage to the River Uruguay”
(Order, paragraph 75).
However, as stated above, I consider that the authorization and the
construction of the mills, or future authorizations and constructions of
other plants on the River Uruguay, are neither neutral nor innocent steps.
The constructions are meant to have a direct effect, which is the final
implementation and full operation of the mills.
In the present case, the majority of the Court has also found that Argentina
has not produced evidence to prove that the future operation of the mills
will cause irreparable harm to the environment. I completely disagree. To
reach such a conclusion, the majority of the Court should have made explicit
reference in the Order to how it evaluated the documentation produced by the
Parties. What Argentina has to prove, and what it has proved, is that the
work authorizations and the actual execution of the works have generated a
reasonable basis of uncertainty on the probable negative effects to the
environment of the works. This would be no more than a direct application of
the precautionary principle, which indisputably is at the core of
environmental law. In my opinion, the precautionary principle is not an
abstraction or an academic component of desirable soft law, but a rule of
law within general international law as it stands today.
However, there is no need, in the present case, to enquire further into the
existence of a general rule of law embodying the precautionary principle,
since the said principle has, on a treaty-law basis, already been
incorporated by Uruguay and Argentina in the 1975 Statute for the purposes
of protecting the environment of the River Uruguay. As clearly stated by
Article 1, the objective and purpose of the 1975 Statute was “to establish a
joint machinery necessary for the optimum and rational utilization of the
River Uruguay”. The necessary participation of the Administrative Commission
of the River Uruguay (CARU) in the process of assessing environmental
impacts on the River Uruguay, as a recognized shared natural resource,
within a pre-established binding joint machinery, constitutes the essential
legal and binding guarantee for the proper implementation of the said
precautionary principle.
The existence of a reasonable uncertainty as to a risk of irreparable harm
to the river environment has been recognized by Uruguay when, at the
hearings on provisional measures, it affirmed that there was no final
environmental assessment in relation to the operation of the mills and that
no authorization had yet been issued for the construction of the CMB plant.
* *
The Republic of Argentina has requested two different sets of provisional
measures. The first set refers, in general terms, to suspension of the
construction of the works until a final decision has been reached by the
Court. The second set of provisional measures refers in general terms to the
full and adequate implementation of rights and obligations under the 1975
Statute.
The majority of the Court has found that, in the present circumstances,
there is no need for the Court to indicate the provisional measures
requested by Argentina. In the motivation of its decision, the Court found
that the construction of the works at the current site could not be deemed
to create a fait accompli. It further considered that Uruguay bears all the
risks of any subsequent finding on the merits whereby it would be found that
the construction of the works breached a legal right of Argentina, and that
such works could not be continued or that the mills would have to be
modified or dismantled. In addition, in considering the present
circumstances of the case, the Court took particular note of the commitments
undertaken by Uruguay at the closing session of the hearings on provisional
measures. I believe, however, that the Court should have proceeded to
guarantee those unilateral commitments by indicating provisional measures
alternative to the ones requested by Argentina.
There is no doubt that the Court has the power to indicate provisional
measures other than those requested by the parties (see Anglo-Iranian Oil
Co., Interim Protection, Order of 5 July 1951, I.C.J. Reports 1951, pp.
93-94; Fisheries Jurisdiction (United Kingdom v. Iceland), Interim
Protection, Order of 17 August 1972, I.C.J. Reports 1972, pp. 17-18;
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim
Protection, Order of 17 August 1972, I.C.J. Reports 1972, pp. 35-36; Nuclear
Tests (Australia v. France), Interim Protection, Order of 22 June 1973,
I.C.J. Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim
Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142; United
States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979,
p. 21; Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Provisional Measures, Order of 10
May 1984, I.C.J. Reports 1984, p. 187; Frontier Dispute (Burkina Faso/Mali),
Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, pp.
12-13; 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. 24).
As recalled above, in the present case, Uruguay has unilaterally recognized
its obligations under the 1975 Statute and assured the Court that it will
abide by them. I consider that this unilateral commitment should have been
complemented by the indication by the majority of the Court of provisional
measures aimed at preserving the procedural and substantial rights of both
Parties to full implementation of the joint machinery provided for under
Chapter II of the 1975 Statute. For that purpose, the majority of the Court
should have indicated, as a provisional measure, the temporary suspension of
the construction of the mills until Uruguay notifies the Court of its
fulfilment of the above-mentioned Statute obligations. In the event that
Argentina might have failed to fulfil its own identical obligations under
the 1975 Statute, Uruguay would always have the possibility to ask the Court
to set aside the indicated temporary suspension.
In addition, the majority of the Court should have encouraged the Parties,
in the spirit of their historical and fraternal relationship, to make an
effort to try to solve the present dispute in accordance with the 1975
Statute, pending the final decision on the merits, as it did in the Passage
through the Great Belt (Finland v. Denmark), Provisional Measures, Order of
29 July 1991, I.C.J. Reports 1991, p. 20, para. 35).
Finally, the majority of the Court should have recognized that it is clearly
in the interest of both Parties that their respective rights and obligations
be determined definitively as early as possible; it would therefore have
been appropriate for the majority of the Court, with the co-operation of the
Parties, to ensure that the decision on the merits be reached with all
possible expedition, as it also did in the Passage through the Great Belt
(Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J.
Reports 1991, p. 20, para. 36).
(Signed) Raúl Emilio VINUESA.
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