13 July 2006

 

General List No. 135

 
     

international Court of Justice

     
 

Pulp Mills on the River Uruguay

 
     

Argentina

 

v. 

Uruguay

     
     
 

Order

 
     
  Return Home
 
 
     
     
 
BEFORE:

President: Higgins;
Vice-President: Al-Khasawneh;
Judges: Ranjeva, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges Ad Hoc Torres Bernárdez, Vinuesa.

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2006.07.13_pulp_mills1.htm
   
Citation: Pulp Mills on the River Uruguay (Arg. v. Uru.), 2006 I.C.J. (Order of July 13)
 
     
 
 
     
 

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.
 

 
     

   

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.