20 April 2010

 

General List No. 135

 
     

international Court of Justice

     
 

Pulp Mills on the River Uruguay

 
     

Argentina

 

v. 

Uruguay

     
     
 

Judgment

 
     
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BEFORE:

Vice-President: Tomka;
Judges: Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood;
Judges Ad Hoc: Torres Bernárdez, Vinuesa

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2010.04.20_pulp_mills.htm
   
Citation: Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. (Apr. 20)
   
Represented By:

Argentina: Ms Susana Ruiz Cerutti, Ambassador, Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship; Mr. Horacio A. Basabe, Ambassador, Director of the Argentine Institute for Foreign Service, former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship, Member of the Permanent Court of Arbitration; Mr. Santos Goñi Marenco, Ambassador of the Argentine Republic to the Kingdom of the Netherlands, as Agent; as Co-Agents; Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and former Chairman of the International Law Commission, associate member of the Institut de droit international; Mr. Philippe Sands, Q.C., Professor of International Law at University College London, Barrister at Matrix Chambers, London; Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, associate member of the Institut de droit international; Ms Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva; Mr. Alan Béraud, Minister at the Embassy of the Argentine Republic to the European Union, former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship; Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense, as Counsel and Advocates; Mr. Homero Bibiloni, Federal Secretary for the Environment and Sustainable Development, as Governmental Authority; Mr. Esteban Lyons, National Director of Environmental Control, Secretariat of the Environment and Sustainable Development; Mr. Howard Wheater, Ph.D. in Hydrology from Bristol University, Professor of Hydrology at Imperial College and Director of the Imperial College Environment Forum; Mr. Juan Carlos Colombo, Ph.D. in Oceanography from the University of Quebec, Professor at the Faculty of Sciences and Museum of the National University of La Plata, Director of the Laboratory of Environmental Chemistry and Biogeochemistry at the National University of La Plata; Mr. Neil McIntyre, Ph.D. in Environmental Engineering, Senior Lecturer in Hydrology at Imperial College London; Ms Inés Camilloni, Ph.D. in Atmospheric Sciences, Professor of Atmospheric Sciences in the Faculty of Sciences of the University of Buenos Aires, Senior Researcher at the National Research Council (CONICET); Mr. Gabriel Raggio, Doctor in Technical Sciences of the Swiss Federal Institute of Technology Zurich (ETHZ) (Switzerland), Independent Consultant, as Scientific Advisers and Experts; Mr. Holger Martinsen, Minister at the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship; Mr. Mario Oyarzábal, Embassy Counsellor, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship; Mr. Fernando Marani, Second Secretary, Embassy of the Argentine Republic in the Kingdom of the Netherlands; Mr. Gabriel Herrera, Embassy Secretary, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship; Ms Cynthia Mulville, Embassy Secretary, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship; Ms Kate Cook, Barrister at Matrix Chambers, London, specializing in environmental law and law relating to development; Ms Mara Tignino, Ph.D. in Law, Researcher at the University of Geneva; Mr. Magnus Jesko Langer, teaching and research assistant, Graduate Institute of International and Development Studies, Geneva, as Legal Advisers;

Uruguay: H.E. Mr. Carlos Gianelli, Ambassador of the Eastern Republic of Uruguay to the United States of America, as Agent; H.E. Mr. Carlos Mora Medero, Ambassador of the Eastern Republic of Uruguay to the Kingdom of the Netherlands, as Co-Agent; Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, Member of the English Bar; Mr. Luigi Condorelli, Professor at the Faculty of Law, University of Florence; Mr. Lawrence H. Martin, Foley Hoag LLP, Member of the Bars of the United States Supreme Court, the District of Columbia and the Commonwealth of Massachusetts; Mr. Stephen C. McCaffrey, Professor at the McGeorge School of Law, University of the Pacific, California, former Chairman of the International Law Commission and Special Rapporteur for the Commission’s work on the law of non-navigational uses of international watercourses; Mr. Alberto Pérez Pérez, Professor in the Faculty of Law, University of the Republic, Montevideo, Mr. Paul S. Reichler, Foley Hoag LLP, Member of the Bars of the United States Supreme Court and the District of Columbia, as Counsel and Advocates; Mr. Marcelo Cousillas, Legal Counsel at the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs; Mr. César Rodriguez Zavalla, Chief of Cabinet, Ministry of Foreign Affairs; Mr. Carlos Mata, Deputy Director of Legal Affairs, Ministry of Foreign Affairs; Mr. Marcelo Gerona, Counsellor at the Embassy of the Eastern Republic of Uruguay in the Kingdom of the Netherlands; Mr. Eduardo Jiménez de Aréchaga, Attorney at law, admitted to the Bar of the Eastern Republic of Uruguay and Member of the Bar of New York; Mr. Adam Kahn, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts; Mr. Andrew Loewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts; Ms Analia Gonzalez, LL.M., Foley Hoag LLP, admitted to the Bar of the Eastern Republic of Uruguay; Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and New York; Ms Cicely Parseghian, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts; Mr. Pierre Harcourt, Ph.D. candidate, University of Edinburgh, Mr. Paolo Palchetti, Associate Professor at the School of Law, University of Macerata; Ms Maria E. Milanes-Murcia, M.A., LL.M., J.S.D. Candidate at the McGeorge School of Law, University of the Pacific, California, Ph.D. Candidate, University of Murcia, admitted to the Bar of Spain, as Assistant Counsel; Ms Alicia Torres, National Director for the Environment at the Ministry of Housing, Land Use Planning and Environmental Affairs; Mr. Eugenio Lorenzo, Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs; Mr. Cyro Croce, Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs; Ms Raquel Piaggio, State Agency for Sanitary Works (OSE), Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs; Mr. Charles A. Menzie, Ph.D., Principal Scientist and Director of the EcoSciences Practice at Exponent, Inc., Alexandria, Virginia; Mr. Neil McCubbin, Eng., B.Sc. (Eng.), 1st Class Honours, Glasgow, Associate of the Royal College of Science and Technology, Glasgow, as Scientific Advisers and Experts.

 
     
 
 
     
 

THE COURT,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 4 May 2006, the Argentine Republic (hereinafter “Argentina”) filed in the Registry of the Court an Application instituting proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”) in respect of a dispute concerning the breach, allegedly committed by Uruguay, of obligations under the Statute of the River Uruguay (United Nations, Treaty Series (UNTS), Vol. 1295, No. I-21425, p. 340), a treaty signed by Argentina and Uruguay at Salto (Uruguay) on 26 February 1975 and having entered into force on 18 September 1976 (hereinafter the “1975 Statute”); in the Application, Argentina stated that this breach arose out of “the authorization, construction and future commissioning of two pulp mills on the River Uruguay”, with reference in particular to “the effects of such activities on the quality of the waters of the River Uruguay and on the areas affected by the river”.

2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Registrar communicated the Application forthwith to the Government of Uruguay. In accordance with paragraph 3 of that Article, the Secretary-General of the United Nations was notified of the filing of the Application.

3. On 4 May 2006, immediately after the filing of the Application, Argentina also submitted a request for the indication of provisional measures based on Article 41 of the Statute and Article 73 of the Rules of Court. In accordance with Article 73, paragraph 2, of the Rules of Court, the Registrar transmitted a certified copy of this request forthwith to the Government of Uruguay.

4. On 2 June 2006, Uruguay transmitted to the Court a CD-ROM containing the electronic version of two volumes of documents relating to the Argentine request for the indication of provisional measures, entitled “Observations of Uruguay” (of which paper copies were subsequently received); a copy of these documents was immediately sent to Argentina.

5. On 2 June 2006, Argentina transmitted to the Court various documents, including a video recording, and, on 6 June 2006, it transmitted further documents; copies of each series of documents were immediately sent to Uruguay.

6. On 6 and 7 June 2006, various communications were received from the Parties, whereby each Party presented the Court with certain observations on the documents submitted by the other Party. Uruguay objected to the production of the video recording submitted by Argentina. The Court decided not to authorize the production of that recording at the hearings.

7. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them exercised its right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Argentina chose Mr. Raúl Emilio Vinuesa, and Uruguay chose Mr. Santiago Torres Bernárdez.

8. By an Order of 13 July 2006, the Court, having heard the Parties, found “that the circumstances, as they [then] present[ed] themselves to [it], [we]re not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”.

9. By another Order of the same date, the Court, taking account of the views of the Parties, fixed 15 January 2007 and 20 July 2007, respectively, as the time-limits for the filing of a Memorial by Argentina and a Counter-Memorial by Uruguay; those pleadings were duly filed within the time-limits so prescribed.

10. On 29 November 2006, Uruguay, invoking Article 41 of the Statute and Article 73 of the Rules of Court, in turn submitted a request for the indication of provisional measures. In accordance with Article 73, paragraph 2, of the Rules of Court, the Registrar transmitted a certified copy of this request forthwith to the Argentine Government.

11. On 14 December 2006, Uruguay transmitted to the Court a volume of documents concerning the request for the indication of provisional measures, entitled “Observations of Uruguay”; a copy of these documents was immediately sent to Argentina.

12. On 18 December 2006, before the opening of the oral proceedings, Argentina transmitted to the Court a volume of documents concerning Uruguay’s request for the indication of provisional measures; the Registrar immediately sent a copy of these documents to the Government of Uruguay.

13. By an Order of 23 January 2007, the Court, having heard the Parties, found “that the circumstances, as they [then] present[ed] themselves to [it], [we]re not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”.

14. By an Order of 14 September 2007, the Court, taking account of the agreement of the Parties and of the circumstances of the case, authorized the submission of a Reply by Argentina and a Rejoinder by Uruguay, and fixed 29 January 2008 and 29 July 2008 as the respective time-limits for the filing of those pleadings. The Reply of Argentina and the Rejoinder of Uruguay were duly filed within the time-limits so prescribed.

15. By letters dated 16 June 2009 and 17 June 2009 respectively, the Governments of Uruguay and Argentina notified the Court that they had come to an agreement for the purpose of producing new documents pursuant to Article 56 of the Rules of Court. By letters of 23 June 2009, the Registrar informed the Parties that the Court had decided to authorize them to proceed as they had agreed. The new documents were duly filed within the agreed time-limit.

16. On 15 July 2009, each of the Parties, as provided for in the agreement between them and with the authorization of the Court, submitted comments on the new documents produced by the other Party. Each Party also filed documents in support of these comments.

17. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court decided, after ascertaining the views of the Parties, that copies of the pleadings and documents annexed would be made available to the public as from the opening of the oral proceedings.

18. By letter of 15 September 2009, Uruguay, referring to Article 56, paragraph 4, of the Rules of Court and to Practice Direction IXbis, communicated documents to the Court, forming part of publications readily available, on which it intended to rely during the oral proceedings. Argentina made no objection with regard to these documents.

19. By letter of 25 September 2009, the Argentine Government, referring to Article 56 of the Rules of Court and to Practice Direction IX, paragraph 2, sent new documents to the Registry which it wished to produce. By letter of 28 September 2009, the Government of Uruguay informed the Court that it was opposed to the production of these documents. It further indicated that if, nevertheless, the Court decided to admit the documents in question into the record of the case, it would present comments on them and submit documents in support of those comments. By letters dated 28 September 2009, the Registrar informed the Parties that the Court did not consider the production of the new documents submitted by the Argentine Government to be necessary within the meaning of Article 56, paragraph 2, of the Rules of Court, and that it had not moreover identified any exceptional circumstance (Practice Direction IX, paragraph 3) which justified their production at that stage of the proceedings.

20. Public hearings were held between 14 September 2009 and 2 October 2009, at which the Court heard the oral arguments and replies of:

In its Application, Argentina, referring to Article 36, paragraph 1, of the Statute of the Court, seeks to found the jurisdiction of the Court on Article 60, paragraph 1, of the 1975 Statute.

For Argentina: H.E. Ms Susana Ruiz Cerutti,
Mr. Alain Pellet,
Mr. Philippe Sands,
Mr. Howard Wheater,
Ms Laurence Boisson de Chazournes,
Mr. Marcelo Kohen,
Mr. Alan Béraud,
Mr. Juan Carlos Colombo,
Mr. Daniel Müller.

For Uruguay: H.E. Mr. Carlos Gianelli,
Mr. Alan Boyle,
Mr. Paul S. Reichler,
Mr. Neil McCubbin,
Mr. Stephen C. McCaffrey,
Mr. Lawrence H. Martin,
Mr. Luigi Condorelli.

21. At the hearings, Members of the Court put questions to the Parties, to which replies were given orally and in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to Article 72 of the Rules of Court, one of the Parties submitted written comments on a written reply provided by the other and received after the closure of the oral proceedings.

22. In its Application, the following claims were made by Argentina:

“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
that, by its conduct, Uruguay has engaged its international responsibility to Argentina;
that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligations incumbent upon it; and
that Uruguay shall make full reparation for the injury caused by its breach of the obligations incumbent upon it.
Argentina reserves the right to amplify or amend these requests at a subsequent stage of the proceedings.”

23. In the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Argentina,
in the Memorial:

“For all the reasons described in this Memorial, the Argentine Republic requests the International Court of Justice:
1. to find that by unilaterally authorizing the construction of the CMB and Orion pulp mills and the facilities associated with the latter on the left bank of the River Uruguay, in breach of the obligations resulting from the Statute of 26 February 1975, the Eastern Republic of Uruguay has committed the internationally wrongful acts set out in Chapters IV and V of this Memorial, which entail its international responsibility;
2. to adjudge and declare that, as a result, the Eastern Republic of Uruguay must:
(i) cease immediately the internationally wrongful acts referred to above;
(ii) resume strict compliance with its obligations under the Statute of the River Uruguay of 1975;
(iii) re-establish on the ground and in legal terms the situation that existed before the internationally wrongful acts referred to above were committed;
(iv) pay compensation to the Argentine Republic for the damage caused by these internationally wrongful acts that would not be remedied by that situation being restored, of an amount to be determined by the Court at a subsequent stage of these proceedings;
(v) provide adequate guarantees that it will refrain in future from preventing the Statute of the River Uruguay of 1975 from being applied, in particular the consultation procedure established by Chapter II of that Treaty.
The Argentine Republic reserves the right to supplement or amend these submissions should the need arise, in the light of the development of the situation. This would in particular apply if Uruguay were to aggravate the dispute, [FN1] for example if the Orion mill were to be commissioned before the end of these proceedings.”

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[FN1] See the Order of the Court of 13 July 2006 on Argentina’s request for the indication of provisional measures, para. 82.
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in the Reply:

“For all the reasons described in its Memorial, which it fully stands by, and in the present Reply, the Argentine Republic requests the International Court of Justice:
1. to find that by authorizing
- the construction of the CMB mill;
- the construction and commissioning of the Orion mill and its associated facilities on the left bank of the River Uruguay, the Eastern Republic of Uruguay has violated the obligations incumbent on it under the Statute of the River Uruguay of 26 February 1975 and has engaged its international responsibility;
2. to adjudge and declare that, as a result, the Eastern Republic of Uruguay must:
(i) resume strict compliance with its obligations under the Statute of the River Uruguay of 1975;
(ii) cease immediately the internationally wrongful acts by which it has engaged its responsibility;
(iii) re-establish on the ground and in legal terms the situation that existed before these internationally wrongful acts were committed;
(iv) pay compensation to the Argentine Republic for the damage caused by these internationally wrongful acts that would not be remedied by that situation being restored, of an amount to be determined by the Court at a subsequent stage of these proceedings;
(v) provide adequate guarantees that it will refrain in future from preventing the Statute of the River Uruguay of 1975 from being applied, in particular the consultation procedure established by Chapter II of that Treaty.
The Argentine Republic reserves the right to supplement or amend these submissions should the need arise, in the light of subsequent developments in the case.”

On behalf of the Government of Uruguay,
in the Counter-Memorial:

“On the basis of the facts and arguments set out above, and reserving its right to supplement or amend these Submissions, Uruguay requests that the Court adjudge and declare that the claims of Argentina are rejected.”

In the Rejoinder:

“Based on all the above, it can be concluded that:
(a) Argentina has not demonstrated any harm, or risk of harm, to the river or its ecosystem resulting from Uruguay’s alleged violations of its substantive obligations under the 1975 Statute that would be sufficient to warrant the dismantling of the Botnia plant;
(b) the harm to the Uruguayan economy in terms of lost jobs and revenue would be substantial;
(c) in light of points (a) and (b), the remedy of tearing the plant down would therefore be disproportionately onerous, and should not be granted;
(d) if the Court finds, notwithstanding all the evidence to the contrary, that Uruguay has violated its procedural obligations to Argentina, it can issue a declaratory judgment to that effect, which would constitute an adequate form of satisfaction;
(e) if the Court finds, notwithstanding all the evidence to the contrary, that the plant is not in complete compliance with Uruguay’s obligation to protect the river or its aquatic environment, the Court can order Uruguay to take whatever additional protective measures are necessary to ensure that the plant conforms to the Statute’s substantive requirements;
(f) if the Court finds, notwithstanding all the evidence to the contrary, that Uruguay has actually caused damage to the river or to Argentina, it can order Uruguay to pay Argentina monetary compensation under Articles 42 and 43 of the Statute; and
(g) the Court should issue a declaration making clear the Parties are obligated to ensure full respect for all the rights in dispute in this case, including Uruguay’s right to continue operating the Botnia plant in conformity with the provisions of the 1975 Statute.
Submissions
On the basis of the facts and arguments set out above, and reserving its right to supplement or amend these Submissions, Uruguay requests that the Court adjudge and declare that the claims of Argentina are rejected, and Uruguay’s right to continue operating the Botnia plant in conformity with the provisions of the 1975 Statute is affirmed.”

24. At the oral proceedings, the following final submissions were presented by the Parties:

On behalf of the Government of Argentina,
at the hearing of 29 September 2009:

“For all the reasons described in its Memorial, in its Reply and in the oral proceedings, which it fully stands by, the Argentine Republic requests the International Court of Justice:
1. to find that by authorizing
- the construction of the ENCE mill;
- the construction and commissioning of the Botnia mill and its associated facilities on the left bank of the River Uruguay,  the Eastern Republic of Uruguay has violated the obligations incumbent on it under the Statute of the River Uruguay of 26 February 1975 and has engaged its international responsibility;
2. to adjudge and declare that, as a result, the Eastern Republic of Uruguay must:
(i) resume strict compliance with its obligations under the Statute of the River Uruguay of 1975;
(ii) cease immediately the internationally wrongful acts by which it has engaged its responsibility;
(iii) re-establish on the ground and in legal terms the situation that existed before these internationally wrongful acts were committed;
(iv) pay compensation to the Argentine Republic for the damage caused by these internationally wrongful acts that would not be remedied by that situation being restored, of an amount to be determined by the Court at a subsequent stage of these proceedings;
(v) provide adequate guarantees that it will refrain in future from preventing the Statute of the River Uruguay of 1975 from being applied, in particular the consultation procedure established by Chapter II of that Treaty.”

On behalf of the Government of Uruguay,
at the hearing of 2 October 2009:

“On the basis of the facts and arguments set out in Uruguay’s Counter-Memorial, Rejoinder and during the oral proceedings, Uruguay requests that the Court adjudge and declare that the claims of Argentina are rejected, and Uruguay’s right to continue operating the Botnia plant in conformity with the provisions of the 1975 Statute is affirmed.”

I. LEGAL FRAMEWORK AND FACTS OF THE CASE

25. The dispute before the Court has arisen in connection with the planned construction authorized by Uruguay of one pulp mill and the construction and commissioning of another, also authorized by Uruguay, on the River Uruguay (see sketch-map No. 1 for the general geographical context). After identifying the legal instruments concerning the River Uruguay by which the Parties are bound, the Court will set out the main facts of the case.

A. Legal framework

26. The boundary between Argentina and Uruguay in the River Uruguay is defined by the bilateral Treaty entered into for that purpose at Montevideo on 7 April 1961 (UNTS, Vol. 635, No. 9074, p. 98). Articles 1 to 4 of the Treaty delimit the boundary between the Contracting States in the river and attribute certain islands and islets in it to them. Articles 5 and 6 concern the régime for navigation on the river. Article 7 provides for the establishment by the parties of a “régime for the use of the river” covering various subjects, including the conservation of living resources and the prevention of water pollution of the river. Articles 8 to 10 lay down certain obligations concerning the islands and islets and their inhabitants.

27. The “régime for the use of the river” contemplated in Article 7 of the 1961 Treaty was established through the 1975 Statute (see paragraph 1 above). Article 1 of the 1975 Statute states that the parties adopted it “in order to establish 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”. After having thus defined its purpose (Article 1) and having also made clear the meaning of certain terms used therein (Article 2), the 1975 Statute lays down rules governing navigation and works on the river (Chapter II, Articles 3 to 13), pilotage (Chapter III, Articles 14 to 16), port facilities, unloading and additional loading (Chapter IV, Articles 17 to 18), the safeguarding of human life (Chapter V, Articles 19 to 23) and the salvaging of property (Chapter VI, Articles 24 to 26), use of the waters of the river (Chapter VII, Articles 27 to 29), resources of the bed and subsoil (Chapter VIII, Articles 30 to 34), the conservation, utilization and development of other natural resources (Chapter IX, Articles 35 to 39), pollution (Chapter X, Articles 40 to 43), scientific research (Chapter XI, Articles 44 to 45), and various powers of the parties over the river and vessels sailing on it (Chapter XII, Articles 46 to 48). The 1975 Statute sets up the Administrative Commission of the River Uruguay (hereinafter “CARU”, from the Spanish acronym for “Comisión Administradora del Río Uruguay”) (Chapter XIII, Articles 49 to 57), and then establishes procedures for conciliation (Chap. XIV, Articles 58 to 59) and judicial settlement of disputes (Chapter XV, Article 60). Lastly, the 1975 Statute contains transitional (Chapter XVI, Articles 61 to 62) and final (Chapter XVII, Article 63) provisions.

Sketch-Map No. 1: General Geographical Context

B. CMB (ENCE) Project

28. The first pulp mill at the root of the dispute was planned by “Celulosas de M’Bopicuá S.A.” (hereinafter “CMB”), a company formed by the Spanish company ENCE (from the Spanish acronym for “Empresa Nacional de Celulosas de España”, hereinafter “ENCE”). This mill, hereinafter referred to as the “CMB (ENCE)” mill, was to have been built on the left bank of the River Uruguay in the Uruguayan department of Río Negro opposite the Argentine region of Gualeguaychú, more specifically to the east of the city of Fray Bentos, near the “General San Martín” international bridge (see sketch-map No. 2).

29. On 22 July 2002, the promoters of this industrial project approached the Uruguayan authorities and submitted an environmental impact assessment (“EIA” according to the abbreviation used by the Parties) of the plan to Uruguay’s National Directorate for the Environment (hereinafter “DINAMA”, from the Spanish acronym for “Dirección Nacional de Medio Ambiente”). During the same period, representatives of CMB, which had been specially formed to build the CMB (ENCE) mill, informed the President of CARU of the project. The President of CARU wrote to the Uruguayan Minister of the Environment on 17 October 2002 seeking a copy of the environmental impact assessment of the CMB (ENCE) project submitted by the promoters of this industrial project. This request was reiterated on 21 April 2003. On 14 May 2003, Uruguay submitted to CARU a document entitled “Environmental Impact Study, Celulosas de M’Bopicuá. Summary for public release”. One month later, the CARU Subcommittee on Water Quality and Pollution Control took notice of the document transmitted by Uruguay and suggested that a copy thereof be sent to its technical advisers for their opinions. Copies were also provided to the Parties’ delegations.

30. A public hearing, attended by CARU’s Legal Adviser and its technical secretary, was held on 21 July 2003 in the city of Fray Bentos concerning CMB’s application for an environmental authorization. On 15 August 2003, CARU asked Uruguay for further information on various points concerning the planned CMB (ENCE) mill. This request was reiterated on 12 September 2003. On 2 October 2003, DINAMA submitted its assessment report to the Uruguayan Ministry of Housing, Land Use Planning and Environmental Affairs (hereinafter “MVOTMA”, from the Spanish abbreviation for “Ministerio de Vivienda Ordenamiento Territorial y Medio Ambiente”), recommending that CMB be granted an initial environmental authorization (“AAP” according to the Spanish abbreviation for “autorización ambiental previa”) subject to certain conditions. On 8 October 2003, CARU was informed by the Uruguayan delegation that DINAMA would very shortly send CARU a report on the CMB (ENCE) project.

Sketch-Map No. 2: Siting of the Orion (Botnia) Mill and the Planned CMB (ENCE) Mill (Not Built)

31. On 9 October 2003, MVOTMA issued an initial environmental authorization to CMB for the construction of the CMB (ENCE) mill. On the same date the Presidents of Argentina and Uruguay met at Anchorena (Colonia, Uruguay). Argentina maintains that the President of Uruguay, Jorge Battle, then promised his Argentine counterpart, Néstor Kirchner, that no authorization would be issued before Argentina’s environmental concerns had been addressed. Uruguay challenges this version of the facts and contends that the Parties agreed at that meeting to deal with the CMB (ENCE) project otherwise than through the procedure under Articles 7 to 12 of the 1975 Statute and that Argentina let it be known that it was not opposed to the project per se. Argentina disputes these assertions.

32. The day after the meeting between the Heads of State of Argentina and Uruguay, CARU declared its willingness to resume the technical analyses of the CMB (ENCE) project as soon as Uruguay transmitted the awaited documents. On 17 October 2003, CARU held an extraordinary plenary meeting at the request of Argentina, at which Argentina complained of Uruguay’s granting on 9 October 2003 of the initial environmental authorization. Following the extraordinary meeting CARU suspended work for more than six months, as the Parties could not agree on how to implement the consultation mechanism established by the 1975 Statute.

33. On 27 October 2003, Uruguay transmitted to Argentina copies of the environmental impact assessment submitted by ENCE on 22 July 2002, of DINAMA’s final assessment report dated 2 October 2003 and of the initial environmental authorization of 9 October 2003. Argentina reacted by expressing its view that Article 7 of the 1975 Statute had not been observed and that the transmitted documents did not appear adequate to allow for a technical opinion to be expressed on the environmental impact of the project. On 7 November 2003, further to a request from the Ministry of Foreign Affairs of Argentina, Uruguay provided Argentina with a copy of the Uruguayan Ministry of the Environment’s entire file on the CMB (ENCE) project. On 23 February 2004, Argentina forwarded all of this documentation received from Uruguay to CARU.

34. On 2 March 2004, the Parties’ Ministers for Foreign Affairs met in Buenos Aires. On 15 May 2004, CARU resumed its work at an extraordinary plenary meeting during which it took note of the ministerial “understanding” which was reached on 2 March 2004. The Parties are at odds over the content of this “understanding”. The Court will return to this when it considers Argentina’s claims as to Uruguay’s breach of its procedural obligations under the 1975 Statute (see paragraphs 67 to 158).

35. Following up on CARU’s extraordinary meeting of 15 May 2004, the CARU Subcommittee on Water Quality and Pollution Control prepared a plan for monitoring water quality in the area of the pulp mills (hereinafter the “PROCEL” plan from the Spanish acronym for “Plan de Monitoreo de la Calidad Ambiental en el Río Uruguay en Áreas de Plantas Celulósicas”). CARU approved the plan on 12 November 2004.

36. On 28 November 2005, Uruguay authorized preparatory work to begin for the construction of the CMB (ENCE) mill (ground clearing). On 28 March 2006, the project’s promoters decided to halt the work for 90 days. On 21 September 2006, they announced their intention not to build the mill at the planned site on the bank of the River Uruguay.

C. Orion (Botnia) mill

37. The second industrial project at the root of the dispute before the Court was undertaken by “Botnia S.A.” and “Botnia Fray Bentos S.A.” (hereinafter “Botnia”), companies formed under Uruguayan law in 2003 specially for the purpose by Oy Metsä-Botnia AB, a Finnish company. This second pulp mill, called “Orion” (hereinafter the “Orion (Botnia)” mill), has been built on the left bank of the River Uruguay, a few kilometres downstream of the site planned for the CMB (ENCE) mill, and also near the city of Fray Bentos (see sketch-map No. 2). It has been operational and functioning since 9 November 2007.

38. After informing the Uruguayan authorities of this industrial project in late 2003, the project promoters submitted an application to them for an initial environmental authorization on 31 March 2004 and supplemented it on 7 April 2004. Several weeks later, on 29 and 30 April 2004, CARU members and Botnia representatives met informally. Following that meeting, CARU’s Subcommittee on Water Quality and Pollution Control suggested on 18 June 2004 that Botnia expand on the information provided at the meeting. On 19 October 2004, CARU held another meeting with Botnia representatives and again expressed the need for further information on Botnia’s application to DINAMA for an initial environmental authorization. On 12 November 2004, when approving the water quality monitoring plan put forward by the CARU Subcommittee on Water Quality and Pollution Control (see paragraph 35 above), CARU decided, on the proposal of that subcommittee, to ask Uruguay to provide further information on the application for an initial environmental authorization. CARU transmitted this request for further information to Uruguay by note dated 16 November 2004.

39. On 21 December 2004 DINAMA held a public hearing, attended by a CARU adviser, on the Orion (Botnia) project in Fray Bentos. DINAMA adopted its environmental impact study of the planned Orion (Botnia) mill on 11 February 2005 and recommended that the initial environmental authorization be granted, subject to certain conditions. MVOTMA issued the initial authorization to Botnia on 14 February 2005 for the construction of the Orion (Botnia) mill and an adjacent port terminal. At a CARU meeting on 11 March 2005, Argentina questioned whether the granting of the initial environmental authorization was well-founded in view of the procedural obligations laid down in the 1975 Statute. Argentina reiterated this position at the CARU meeting on 6 May 2005. On 12 April 2005, Uruguay had in the meantime authorized the clearance of the future mill site and the associated groundworks.

40. On 31 May 2005, in pursuance of an agreement made on 5 May 2005 by the Presidents of the two Parties, their Ministers for Foreign Affairs created a High-Level Technical Group (hereinafter the “GTAN”, from the Spanish abbreviation for “Grupo Técnico de Alto Nivel”), which was given responsibility for resolving the disputes over the CMB (ENCE) and Orion (Botnia) mills within 180 days. The GTAN held 12 meetings between 3 August 2005 and 30 January 2006, with the Parties exchanging various documents in the context of this bilateral process. On 31 January 2006, Uruguay determined that the negotiations undertaken within the GTAN had failed; Argentina did likewise on 3 February 2006. The Court will return later to the significance of this process agreed on by the Parties (see paragraphs 132 to 149).

41. On 26 June 2005, Argentina wrote to the President of the International Bank for Reconstruction and Development to express its concern at the possibility of the International Finance Corporation (hereinafter the “IFC”) contributing to the financing of the planned pulp mills. The IFC nevertheless decided to provide financial support for the Orion (Botnia) mill, but did commission EcoMetrix, a consultancy specializing in environmental and industrial matters, to prepare various technical reports on the planned mill and an environmental impact assessment of it. EcoMetrix was also engaged by the IFC to carry out environmental monitoring on the IFC’s behalf of the plant once it had been placed in service.

42. On 5 July 2005, Uruguay authorized Botnia to build a port adjacent to the Orion (Botnia) mill. This authorization was transmitted to CARU on 15 August 2005. On 22 August 2005, Uruguay authorized the construction of a chimney and concrete foundations for the Orion (Botnia) mill. Further authorizations were granted as the construction of this mill proceeded, for example in respect of the waste treatment installations. On 13 October 2005, Uruguay transmitted additional documentation to CARU concerning the port terminal adjacent to the Orion (Botnia) mill. Argentina repeatedly asked, including at CARU meetings, that the initial work connected with the Orion (Botnia) mill and the CMB (ENCE) mill should be suspended. At a meeting between the Heads of State of the Parties at Santiago de Chile on 11 March 2006, Uruguay’s President asked ENCE and Botnia to suspend construction of the mills. ENCE suspended work for 90 days (see paragraph 36 above), Botnia for ten.

43. Argentina referred the present dispute to the Court by Application dated 4 May 2006. On 24 August 2006, Uruguay authorized the commissioning of the port terminal adjacent to the Orion (Botnia) mill and gave CARU notice of this on 4 September 2006. On 12 September 2006, Uruguay authorized Botnia to extract and use water from the river for industrial purposes and formally notified CARU of its authorization on 17 October 2006. At the summit of Heads of State and Government of the Ibero-American countries held in Montevideo in November 2006, the King of Spain was asked to endeavour to reconcile the positions of the Parties; a negotiated resolution of the dispute did not however result. On 8 November 2007, Uruguay authorized the commissioning of the Orion (Botnia) mill and it began operating the next day. In December 2009, Oy Metsä-Botnia AB transferred its interest in the Orion (Botnia) mill to UPM, another Finnish company.

44. In addition, Uruguay authorized Ontur International S.A. to build and operate a port terminal at Nueva Palmira. The terminal was inaugurated in August 2007 and, on 16 November 2007, Uruguay transmitted to CARU a copy of the authorization for its commissioning.

45. In their written pleadings the Parties have debated whether, in light of the procedural obligations laid down in the 1975 Statute, the authorizations for the port terminal were properly issued by Uruguay. The Court deems it unnecessary to review the detailed facts leading up to the construction of the Nueva Palmira terminal, being of the view that these port facilities do not fall within the scope of the subject of the dispute before it. Indeed, nowhere in the claims asserted in its Application or in the submissions in its Memorial or Reply (see paragraphs 22 and 23 above) did Argentina explicitly refer to the port terminal at Nueva Palmira. In its final submissions presented at the hearing on 29 September 2009, Argentina again limited the subject-matter of its claims to the authorization of the construction of the CMB (ENCE) mill and the authorization of the construction and commissioning of “the Botnia mill and its associated facilities on the left bank of the River Uruguay”. The Court does not consider the port terminal at Nueva Palmira, which lies some 100 km south of Fray Bentos, downstream of the Orion (Botnia) mill (see sketch-map No. 1), and is used by other economic operators as well, to be a facility “associated” with the mill.

46. The dispute submitted to the Court concerns the interpretation and application of the 1975 Statute, namely, on the one hand whether Uruguay complied with its procedural obligations under the 1975 Statute in issuing authorizations for the construction of the CMB (ENCE) mill as well as for the construction and the commissioning of the Orion (Botnia) mill and its adjacent port; and on the other hand whether Uruguay has complied with its substantive obligations under the 1975 Statute since the commissioning of the Orion (Botnia) mill in November 2007. * *

47. Having thus related the circumstances surrounding the dispute between the Parties, the Court will consider the basis and scope of its jurisdiction, including questions relating to the law applicable to the present dispute (see paragraphs 48 to 66). It will then examine Argentina’s allegations of breaches by Uruguay of procedural obligations (see paragraphs 67 to 158) and substantive obligations (see paragraphs 159 to 266) laid down in the 1975 Statute. Lastly, the Court will respond to the claims presented by the Parties in their final submissions (see paragraphs 267 to 280).

II. SCOPE OF THE COURT’S JURISDICTION

48. The Parties are in agreement that the Court’s jurisdiction is based on Article 36, paragraph 1, of the Statute of the Court and Article 60, paragraph 1, of the 1975 Statute. The latter reads: “Any dispute concerning the interpretation or application of the Treaty [FN1] and the Statute which cannot be settled by direct negotiations may be submitted by either party to the International Court of Justice.” The Parties differ as to whether all the claims advanced by Argentina fall within the ambit of the compromissory clause.

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[FN1] The Montevideo Treaty of 7 April 1961, concerning the boundary constituted by the River Uruguay (UNTS, Vol. 635, No. 9074, p. 98; footnote added).
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49. Uruguay acknowledges that the Court’s jurisdiction under the compromissory clause extends to claims concerning any pollution or type of harm caused to the River Uruguay, or to organisms living there, in violation of the 1975 Statute. Uruguay also acknowledges that claims concerning the alleged impact of the operation of the pulp mill on the quality of the waters of the river fall within the compromissory clause. On the other hand, Uruguay takes the position that Argentina cannot rely on the compromissory clause to submit claims regarding every type of environmental damage. Uruguay further argues that Argentina’s contentions concerning air pollution, noise, visual and general nuisance, as well as the specific impact on the tourism sector, allegedly caused by the Orion (Botnia) mill, do not concern the interpretation or the application of the 1975 Statute, and the Court therefore lacks jurisdiction over them. Uruguay nevertheless does concede that air pollution which has harmful effects on the quality of the waters of the river or on the aquatic environment would fall within the jurisdiction of the Court.

50. Argentina maintains that Uruguay’s position on the scope of the Court’s jurisdiction is too narrow. It contends that the 1975 Statute was entered into with a view to protect not only the quality of the waters of the river but more generally its “régime” and the areas affected by it. Relying on Article 36 of the 1975 Statute, which lays out the obligation of the parties to co-ordinate measures to avoid any change in the ecological balance and to control harmful factors in the river and the areas affected by it, Argentina asserts that the Court has jurisdiction also with respect to claims concerning air pollution and even noise and “visual” pollution. Moreover, Argentina contends that bad odours caused by the Orion (Botnia) mill negatively affect the use of the river for recreational purposes, particularly in the Gualeguaychú resort on its bank of the river. This claim, according to Argentina, also falls within the Court’s jurisdiction.

51. The Court, when addressing various allegations or claims advanced by Argentina, will have to determine whether they concern “the interpretation or application” of the 1975 Statute, as its jurisdiction under Article 60 thereof covers “[a]ny dispute concerning the interpretation or application of the [1961] Treaty and the [1975] Statute”. Argentina has made no claim to the effect that Uruguay violated obligations under the 1961 Treaty. 

52. In order to determine whether Uruguay has breached its obligations under the 1975 Statute, as alleged by Argentina, the Court will have to interpret its provisions and to determine their scope ratione materiae.

Only those claims advanced by Argentina which are based on the provisions of the 1975 Statute fall within the Court’s jurisdiction ratione materiae under the compromissory clause contained in Article 60. Although Argentina, when making claims concerning noise and “visual” pollution allegedly caused by the pulp mill, invokes the provision of Article 36 of the 1975 Statute, the Court sees no basis in it for such claims. The plain language of Article 36, which provides that “[t]he parties shall co-ordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it”, leaves no doubt that it does not address the alleged noise and visual pollution as claimed by Argentina. Nor does the Court see any other basis in the 1975 Statute for such claims; therefore, the claims relating to noise and visual pollution are manifestly outside the jurisdiction of the Court conferred upon it under Article 60.

Similarly, no provision of the 1975 Statute addresses the issue of “bad odours” complained of by Argentina. Consequently, for the same reason, the claim regarding the impact of bad odours on tourism in Argentina also falls outside the Court’s jurisdiction. Even if bad odours were to be subsumed under the issue of air pollution, which will be addressed in paragraphs 263 and 264 below, the Court notes that Argentina has submitted no evidence as to any relationship between the alleged bad odours and the aquatic environment of the river.

53. Characterizing the provisions of Articles 1 and 41 of the 1975 Statute as “referral clauses”, Argentina ascribes to them the effect of incorporating into the Statute the obligations of the Parties under general international law and a number of multilateral conventions pertaining to the protection of the environment. Consequently, in the view of Argentina, the Court has jurisdiction to determine whether Uruguay has complied with its obligations under certain international conventions.

54. The Court now therefore turns its attention to the issue whether its jurisdiction under Article 60 of the 1975 Statute also encompasses obligations of the Parties under international agreements and general international law invoked by Argentina and to the role of such agreements and general international law in the context of the present case.

55. Argentina asserts that the 1975 Statute constitutes the law applicable to the dispute before the Court, as supplemented so far as its application and interpretation are concerned, by various customary principles and treaties in force between the Parties and referred to in the Statute. Relying on the rule of treaty interpretation set out in Article 31, paragraph 3 (c) of the Vienna Convention on the Law of Treaties, Argentina contends notably that the 1975 Statute must be interpreted in the light of principles governing the law of international watercourses and principles of international law ensuring protection of the environment. It asserts that the 1975 Statute must be interpreted so as to take account of all “relevant rules” of international law applicable in the relations between the Parties, so that the Statute’s interpretation remains current and evolves in accordance with changes in environmental standards. In this connection Argentina refers to the principles of equitable, reasonable and non-injurious use of international watercourses, the principles of sustainable development, prevention, precaution and the need to carry out an environmental impact assessment. It contends that these rules and principles are applicable in giving the 1975 Statute a dynamic interpretation, although they neither replace it nor restrict its scope.

56. Argentina further considers that the Court must require compliance with the Parties’ treaty obligations referred to in Articles 1 and 41 (a) of the 1975 Statute. Argentina maintains that the “referral clauses” contained in these articles make it possible to incorporate and apply obligations arising from other treaties and international agreements binding on the Parties. To this end, Argentina refers to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (hereinafter the “CITES Convention”), the 1971 Ramsar Convention on Wetlands of International Importance (hereinafter the “Ramsar Convention”), the 1992 United Nations Convention on Biological Diversity (hereinafter the “Biodiversity Convention”), and the 2001 Stockholm Convention on Persistent Organic Pollutants (hereinafter the “POPs Convention”). It asserts that these conventional obligations are in addition to the obligations arising under the 1975 Statute, and observance of them should be ensured when application of the Statute is being considered. Argentina maintains that it is only where “more specific rules of the [1975] Statute (lex specialis)” derogate from them that the instruments to which the Statute refers should not be applied.

57. Uruguay likewise considers that the 1975 Statute must be interpreted in the light of general international law and it observes that the Parties concur on this point. It maintains however that its interpretation of the 1975 Statute accords with the various general principles of the law of international watercourses and of international environmental law, even if its understanding of these principles does not entirely correspond to that of Argentina. Uruguay considers that whether Articles 1 and 41 (a) of the 1975 Statute can be read as a referral to other treaties in force between the Parties has no bearing in the present case, because conventions relied on by Argentina are either irrelevant, or Uruguay cannot be found to have violated any other conventional obligations. In any event, the Court would lack jurisdiction to rule on alleged breaches of international obligations which are not contained in the 1975 Statute.

58. The Court will first address the issue whether Articles 1 and 41 (a) can be read as incorporating into the 1975 Statute the obligations of the Parties under the various multilateral conventions relied upon by Argentina.

59. Article 1 of the 1975 Statute reads as follows:

“The parties agree on this Statute, in implementation of the provisions of Article 7 of the Treaty concerning the Boundary Constituted by the River Uruguay of 7 April 1961, in order to establish 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.” (UNTS, Vol. 1295, No. I-21425, p. 340; footnote omitted.)

Article 1 sets out the purpose of the 1975 Statute. The Parties concluded it in order to establish the joint machinery necessary for the rational and optimum utilization of the River Uruguay. It is true that this article contains a reference to “the rights and obligations arising from treaties and other international agreements in force for each of the parties”. This reference, however, does not suggest that the Parties sought to make compliance with their obligations under other treaties one of their duties under the 1975 Statute; rather, the reference to other treaties emphasizes that the agreement of the Parties on the Statute is reached in implementation of the provisions of Article 7 of the 1961 Treaty and “in strict observance of the rights and obligations arising from treaties and other international agreements in force for each of the parties” (emphasis added). While the conjunction “and” is missing from the English and French translations of the 1975 Statute, as published in the United Nations Treaty Series (Vol. 1295, p. 340 and p. 348), it is contained in the Spanish text of the Statute, which is the authentic text and reads as follows:

“Las partes acuerdan el presente Estatuto, en cumplimiento de lo dispuesto en el Artículo 7 del Tratado de Límites en el Río Uruguay, de 7 de Abril de 1961 con el fin de establecer los mecanismos comunes necesarios para el óptimo y racional aprovechamiento del Río Uruguay, y en estricta observancia de los derechos y obligaciones emergentes de los tratados y demás compromisos internacionales vigentes para cualquiera de las partes.” (UNTS, Vol. 1295, p. 332; emphasis added.)

The presence of the conjunction in the Spanish text suggests that the clause “in strict observance of the rights and obligations arising from treaties and other international agreements in force for each of the parties” is linked to and is to be read with the first part of Article 1, i.e., “[t]he parties agree on this Statute, in implementation of the provisions of Article 7 of the Treaty concerning the Boundary Constituted by the River Uruguay”.

60. There is one additional element in the language of Article 1 of the 1975 Statute which should be noted. It mentions “treaties and other international agreements in force for each of the parties” (in Spanish original “tratados y demás compromisos internacionales vigentes para cualquiera de las partes”; emphasis added). In the French translation, this part of Article 1 reads “traités et autres engagements internationaux en vigueur à l’égard de l’une ou l’autre des parties” (emphasis added).

The fact that Article 1 does not require that the “treaties and other international agreements” should be in force between the two parties thus clearly indicates that the 1975 Statute takes account of the prior commitments of each of the parties which have a bearing on it.

61. Article 41 of the 1975 Statute, paragraph (a) of which Argentina considers as constituting another “referral clause” incorporating the obligations under international agreements into the Statute, reads as follows:

“Without prejudice to the functions assigned to the Commission in this respect, the parties undertake:
(a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and [adopting appropriate] measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies;
(b) not to reduce in their respective legal systems:
the technical requirements in force for preventing water pollution, and
the severity of the penalties established for violations;
(c) to inform one another of any rules which they plan to prescribe with regard to water pollution in order to establish equivalent rules in their respective legal systems.” (Emphasis added.)

62. The Court observes that the words “adopting appropriate” do not appear in the English translation while they appear in the original Spanish text (“dictando las normas y adoptando las medidas apropiadas”). Basing itself on the original Spanish text, it is difficult for the Court to see how this provision could be construed as a “referral clause” having the effect of incorporating the obligations of the parties under international agreements and other norms envisaged within the ambit of the 1975 Statute.

The purpose of the provision in Article 41 (a) is to protect and preserve the aquatic environment by requiring each of the parties to enact rules and to adopt appropriate measures. Article 41 (a) distinguishes between applicable international agreements and the guidelines and recommendations of international technical bodies. While the former are legally binding and therefore the domestic rules and regulations enacted and the measures adopted by the State have to comply with them, the latter, not being formally binding, are, to the extent they are relevant, to be taken into account by the State so that the domestic rules and regulations and the measures it adopts are compatible (“con adecuación”) with those guidelines and recommendations. However, Article 41 does not incorporate international agreements as such into the 1975 Statute but rather sets obligations for the parties to exercise their regulatory powers, in conformity with applicable international agreements, for the protection and preservation of the aquatic environment of the River Uruguay. Under Article 41 (b) the existing requirements for preventing water pollution and the severity of the penalties are not to be reduced. Finally, paragraph (c) of Article 41 concerns the obligation to inform the other party of plans to prescribe rules on water pollution.

63. The Court concludes that there is no basis in the text of Article 41 of the 1975 Statute for the contention that it constitutes a “referral clause”. Consequently, the various multilateral conventions relied on by Argentina are not, as such, incorporated in the 1975 Statute. For that reason, they do not fall within the scope of the compromissory clause and therefore the Court has no jurisdiction to rule whether Uruguay has complied with its obligations thereunder.

64. The Court next briefly turns to the issue of how the 1975 Statute is to be interpreted. The Parties concur as to the 1975 Statute’s origin and historical context, although they differ as to the nature and general tenor of the Statute and the procedural and substantive obligations therein. The Parties nevertheless are in agreement that the 1975 Statute is to be interpreted in accordance with rules of customary international law on treaty interpretation, as codified in Article 31 of the Vienna Convention on the Law of Treaties.

65. The Court has had recourse to these rules when it has had to interpret the provisions of treaties and international agreements concluded before the entry into force of the Vienna Convention on the Law of Treaties in 1980 (see, e.g., Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 21, para. 41; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1059, para. 18). The 1975 Statute is also a treaty which predates the entry into force of the Vienna Convention on the Law of Treaties. In interpreting the terms of the 1975 Statute, the Court will have recourse to the customary rules on treaty interpretation as reflected in Article 31 of the Vienna Convention. Accordingly the 1975 Statute is to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the [Statute] in their context and in light of its object and purpose”. That interpretation will also take into account, together with the context, “any relevant rules of international law applicable in the relations between the parties”.

66. In the interpretation of the 1975 Statute, taking account of relevant rules of international law applicable in the relations between the Parties, whether these are rules of general international law or contained in multilateral conventions to which the two States are parties, nevertheless has no bearing on the scope of the jurisdiction conferred on the Court under Article 60 of the 1975 Statute, which remains confined to disputes concerning the interpretation or application of the Statute.

III. THE ALLEGED BREACH OF PROCEDURAL OBLIGATIONS

67. The Application filed by Argentina on 4 May 2006 concerns the alleged breach by Uruguay of both procedural and substantive obligations laid down in the 1975 Statute. The Court will start by considering the alleged breach of procedural obligations under Articles 7 to 12 of the 1975 Statute, in relation to the (CMB) ENCE and Orion (Botnia) mill projects and the facilities associated with the latter, on the left bank of the River Uruguay near the city of Fray Bentos.

68. Argentina takes the view that the procedural obligations were intrinsically linked to the substantive obligations laid down by the 1975 Statute, and that a breach of the former entailed a breach of the latter.

With regard to the procedural obligations, these are said by Argentina to constitute an integrated and indivisible whole in which CARU, as an organization, plays an essential role.

Consequently, according to Argentina, Uruguay could not invoke other procedural arrangements so as to derogate from the procedural obligations laid down by the 1975 Statute, except by mutual consent.

69. Argentina argues that, at the end of the procedural mechanism provided for by the 1975 Statute, and in the absence of agreement between the Parties, the latter have no choice but to submit the matter to the Court under the terms of Articles 12 and 60 of the Statute, with Uruguay being unable to proceed with the construction of the planned mills until the Court has delivered its Judgment.

70. Following the lines of the argument put forward by the Applicant, the Court will examine in turn the following four points: The links between the procedural obligations and the substantive obligations (A); the procedural obligations and their interrelation with each other (B); whether the Parties agreed to derogate from the procedural obligations set out in the 1975 Statute (C); and Uruguay’s obligations at the end of the negotiation period (D).

A. The links between the procedural obligations and the substantive obligations

71. Argentina maintains that the procedural provisions laid down in Articles 7 to 12 of the 1975 Statute are aimed at ensuring “the optimum and rational utilization of the [r]iver” (Article 1), just as are the provisions concerning use of water, the conservation, utilization and development of other natural resources, pollution and research. The aim is also said to be to prevent the Parties from acting unilaterally and without regard for earlier or current uses of the river. According to Argentina, any disregarding of this machinery would therefore undermine the object and purpose of the 1975 Statute; indeed the “optimum and rational utilization of the [r]iver” would not be ensured, as this could only be achieved in accordance with the procedures laid down under the Statute.

72. It follows, according to Argentina, that a breach of the procedural obligations automatically entails a breach of the substantive obligations, since the two categories of obligations are indivisible. Such a position is said to be supported by the Order of the Court of 13 July 2006, according to which the 1975 Statute created “a comprehensive régime”.

73. Uruguay similarly takes the view that the procedural obligations are intended to facilitate the performance of the substantive obligations, the former being a means rather than an end. It too points out that Article 1 of the 1975 Statute defines its object and purpose.

74. However, Uruguay rejects Argentina’s argument as artificial, since it appears to mix procedural and substantive questions with the aim of creating the belief that the breach of procedural obligations necessarily entails the breach of substantive ones. According to Uruguay, it is for the Court to determine the breach, in itself, of each of these categories of obligations, and to draw the necessary conclusions in each case in terms of responsibility and reparation.

75. The Court notes that the object and purpose of the 1975 Statute, set forth in Article 1, is for the Parties to achieve “the optimum and rational utilization of the River Uruguay” by means of the “joint machinery” for co-operation, which consists of both CARU and the procedural provisions contained in Articles 7 to 12 of the Statute.

The Court has observed in this respect, in its Order of 13 July 2006, that such use should allow for sustainable development which takes account of “the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 80).

76. In the Gabčikovo-Nagymaros case, the Court, after recalling that “[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development”, added that “[i]t is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, paras. 140-141).

77. The Court observes that it is by co-operating that the States concerned can jointly manage the risks of damage to the environment that might be created by the plans initiated by one or other of them, so as to prevent the damage in question, through the performance of both the procedural and the substantive obligations laid down by the 1975 Statute. However, whereas the substantive obligations are frequently worded in broad terms, the procedural obligations are narrower and more specific, so as to facilitate the implementation of the 1975 Statute through a process of continuous consultation between the parties concerned. The Court has described the régime put in place by the 1975 Statute as a “comprehensive and progressive régime” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 81), since the two categories of obligations mentioned above complement one another perfectly, enabling the parties to achieve the object of the Statute which they set themselves in Article 1.

78. The Court notes that the 1975 Statute created CARU and established procedures in connection with that institution, so as to enable the parties to fulfil their substantive obligations. However, nowhere does the 1975 Statute indicate that a party may fulfil its substantive obligations by complying solely with its procedural obligations, nor that a breach of procedural obligations automatically entails the breach of substantive ones.

Likewise, the fact that the parties have complied with their substantive obligations does not mean that they are deemed to have complied ipso facto with their procedural obligations, or are excused from doing so. Moreover, the link between these two categories of obligations can also be broken, in fact, when a party which has not complied with its procedural obligations subsequently abandons the implementation of its planned activity.

79. The Court considers, as a result of the above, that there is indeed a functional link, in regard to prevention, between the two categories of obligations laid down by the 1975 Statute, but that link does not prevent the States parties from being required to answer for those obligations separately, according to their specific content, and to assume, if necessary, the responsibility resulting from the breach of them, according to the circumstances.

B. The procedural obligations and their interrelation

80. The 1975 Statute imposes on a party which is planning certain activities, set out in Article 7, first paragraph, procedural obligations whose content, interrelation and time-limits are specified as follows in Articles 7 to 12:

“Article 7
If one party plans to construct new channels, substantially modify or alter existing ones or carry out any other works which are liable to affect navigation, the régime of the river or the quality of its waters, it shall notify the Commission, which shall determine on a preliminary basis and within a maximum period of 30 days whether the plan might cause significant damage to the other party.
If the Commission finds this to be the case or if a decision cannot be reached in that regard, the party concerned shall notify the other party of the plan through the said Commission.
Such notification shall describe the main aspects of the work and, where appropriate, how it is to be carried out and shall include any other technical data that will enable the notified party to assess the probable impact of such works on navigation, the régime of the river or the quality of its waters.
Article 8
The notified party shall have a period of 180 days in which to respond in connection with the plan, starting from the date on which its delegation to the Commission receives the notification.
Should the documentation referred to in Article 7 be incomplete, the notified party shall have 30 days in which to so inform, through the Commission, the party which plans to carry out the work.
The period of 180 days mentioned above shall begin on the date on which the delegation of the notified party receives the full documentation.
This period may be extended at the discretion of the Commission if the complexity of the plan so requires.
Article 9
If the notified party raises no objections or does not respond within the period established in Article 8, the other party may carry out or authorize the work planned.
Article 10
The notified party shall have the right to inspect the works being carried out in order to determine whether they conform to the plan submitted.
Article 11
Should the notified party come to the conclusion that the execution of the work or the programme of operations might significantly impair navigation, the régime of the river or the quality of its waters, it shall so notify the other party, through the Commission, within the period of 180 days established in Article 8.
Such notification shall specify which aspects of the work or the programme of operations might significantly impair navigation, the régime of the river or the quality of its waters, the technical reasons on which this conclusion is based and the changes suggested to the plan or programme of operations.
Article 12
Should the parties fail to reach agreement within 180 days following the notification referred to in Article 11, the procedure indicated in Chapter XV shall be followed.”

81. The original Spanish text of Article 7 of the 1975 Statute reads as follows:

“La parte que proyecte la construcción de nuevos canales, la modificación o alteración significativa de los ya existentes o la realización de cualesquiera otras obras de entidad suficiente para afectar la navegación, el régimen del Río o la calidad de sus aguas, deberá comunicarlo a la Comisión, la cual determinará sumariamente, y en un plazo máximo de treinta días, si el proyecto puede producir perjuicio sensible a la otra parte.
Si así se resolviere o no se llegare a una decisión al respecto, la parte interesada deberá notificar el proyecto a la otra parte a través de la misma Comisión.
En la notificación deberán figurar los aspectos esenciales de la obra y, si fuere el caso, el modo de su operación y los demás datos técnicos que permitan a la parte notificada hacer una evaluación del efecto probable que la obra ocasionará a la navegación, al régimen del Río o a la calidad de sus aguas.”

The Court notes that, just as the original Spanish text, the French translation of this article (see paragraph 80 above) distinguishes between the obligation to inform (“comunicar”) CARU of any plan falling within its purview (first paragraph) and the obligation to notify (“notificar”) the other party (second paragraph). By contrast, the English translation uses the same verb “notify” in respect of both obligations. In order to conform to the original Spanish text, the Court will use in both linguistic versions of this Judgment the verb “inform” for the obligation set out in the first paragraph of Article 7 and the verb “notify” for the obligation set out in the second and third paragraphs.

The Court considers that the procedural obligations of informing, notifying and negotiating constitute an appropriate means, accepted by the Parties, of achieving the objective which they set themselves in Article 1 of the 1975 Statute. These obligations are all the more vital when a shared resource is at issue, as in the case of the River Uruguay, which can only be protected through close and continuous co-operation between the riparian States.

82. According to Argentina, by failing to comply with the initial obligation (Article 7, first paragraph, of the 1975 Statute) to refer the matter to CARU, Uruguay frustrated all the procedures laid down in Articles 7 to 12 of the Statute. In addition, by failing to notify Argentina of the plans for the CMB (ENCE) and Orion (Botnia) mills, through CARU, with all the necessary documentation, Uruguay is said not to have complied with Article 7, second and third paragraphs. Argentina adds that informal contacts which it or CARU may have had with the companies in question cannot serve as a substitute for Uruguay referring the matter to CARU and notifying Argentina of the projects through the Commission. Argentina concludes that Uruguay has breached all of its procedural obligations under the terms of Articles 7 to 12 of the 1975 Statute. Uruguay, for its part, considers that referring the matter to CARU does not impose so great a constraint as Argentina contends and that the parties may agree, by mutual consent, to use different channels by employing other procedural arrangements in order to engage in co-operation. It concludes from this that it has not breached the procedural obligations laid down by the 1975 Statute, even if it has performed them without following to the letter the formal process set out therein.

83. The Court will first examine the nature and role of CARU, and then consider whether Uruguay has complied with its obligations to inform CARU and to notify Argentina of its plans.

1. The nature and role of CARU

84. Uruguay takes the view that CARU, like other river commissions, is not a body with autonomous powers, but rather a mechanism established to facilitate co-operation between the Parties. It adds that the States which have created these river commissions are free to go outside the joint mechanism when it suits their purposes, and that they often do so. According to Uruguay, since CARU is not empowered to act outside the will of the Parties, the latter are free to do directly what they have decided to do through the Commission, and in particular may agree not to inform it in the manner provided for in Article 7 of the 1975 Statute. Uruguay maintains that that is precisely what happened in the present case: the two States agreed to dispense with the preliminary review by CARU and to proceed immediately to direct negotiations.

85. For Argentina, on the other hand, the 1975 Statute is not merely a bilateral treaty imposing reciprocal obligations on the parties; it establishes an institutional framework for close and ongoing co-operation, the core and essence of which is CARU. For Argentina, CARU is the key body for co-ordination between the parties in virtually all areas covered by the 1975 Statute. By failing to fulfil its obligations in this respect, Uruguay is said to be calling the 1975 Statute fundamentally into question.

86. The Court recalls that it has already described CARU as

“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; . . . [a] mechanism [which] constitutes a very important part of that treaty régime” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, pp. 133-134, para. 81).

87. The Court notes, first, that CARU, in accordance with Article 50 of the 1975 Statute, was endowed with legal personality “in order to perform its functions” and that the parties to the 1975 Statute undertook to provide it with “the necessary resources and all the information and facilities essential to its operations”. Consequently, far from being merely a transmission mechanism between the parties, CARU has a permanent existence of its own; it exercises rights and also bears duties in carrying out the functions attributed to it by the 1975 Statute.

88. While the decisions of the Commission must be adopted by common accord between the riparian States (Article 55), these are prepared and implemented by a secretariat whose staff enjoy privileges and immunities. Moreover, CARU is able to decentralize its various functions by setting up whatever subsidiary bodies it deems necessary (Article 52).

89. The Court observes that, like any international organization with legal personality, CARU is entitled to exercise the powers assigned to it by the 1975 Statute and which are necessary to achieve the object and purpose of the latter, namely, “the optimum and rational utilization of the River Uruguay” (Article 1). As the Court has pointed out, “[i]nternational organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them” (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 (I), p. 78, para. 25). This also applies of course to organizations, which like CARU, only have two member States.

90. Since CARU serves as a framework for consultation between the parties, particularly in the case of the planned works contemplated in Article 7, first paragraph, of the 1975 Statute, neither of them may depart from that framework unilaterally, as they see fit, and put other channels of communication in its place. By creating CARU and investing it with all the resources necessary for its operation, the parties have sought to provide the best possible guarantees of stability, continuity and effectiveness for their desire to co-operate in ensuring “the optimum and rational utilization of the River Uruguay”.

91. That is why CARU plays a central role in the 1975 Statute and cannot be reduced to merely an optional mechanism available to the parties which each may use or not, as it pleases. CARU operates at all levels of utilization of the river, whether concerning the prevention of transboundary harm that may result from planned activities; the use of water, on which it receives reports from the parties and verifies whether the developments taken together are liable to cause significant damage (Articles 27 and 28); the avoidance of any change in the ecological balance (Article 36); scientific studies and research carried out by one party within the jurisdiction of the other (Article 44); the exercise of the right of law enforcement (Article 46); or the right of navigation (Article 48).

93. Furthermore, CARU has been given the function of drawing up rules in many areas associated with the joint management of the river and listed in Article 56 of the 1975 Statute. Lastly, at the proposal of either party, the Commission can act as a conciliation body in any dispute which may arise between the parties (Article 58).

93. Consequently, the Court considers that, because of the scale and diversity of the functions they have assigned to CARU, the Parties intended to make that international organization a central component in the fulfilment of their obligations to co-operate as laid down by the 1975 Statute.

2. Uruguay’s obligation to inform CARU

94. The Court notes that the obligation of the State initiating the planned activity to inform CARU constitutes the first stage in the procedural mechanism as a whole which allows the two parties to achieve the object of the 1975 Statute, namely, the optimum and rational utilization of the River Uruguay”. This stage, provided for in Article 7, first paragraph, involves the State which is initiating the planned activity informing CARU thereof, so that the latter can determine “on a preliminary basis” and within a maximum period of 30 days whether the plan might cause significant damage to the other party.

95. To enable the remainder of the procedure to take its course, the parties have included alternative conditions in the 1975 Statute: either that the activity planned by one party should be liable, in CARU’s opinion, to cause significant damage to the other, creating an obligation of prevention for the first party to eliminate or minimize the risk, in consultation with the other party; or that CARU, having been duly informed, should not have reached a decision in that regard within the prescribed period.

96. The Court notes that the Parties are agreed in considering that the two planned mills were works of sufficient importance to fall within the scope of Article 7 of the 1975 Statute, and thus for CARU to have been informed of them. The same applies to the plan to construct a port terminal at Fray Bentos for the exclusive use of the Orion (Botnia) mill, which included dredging work and use of the river bed.

97. However, the Court observes that the Parties disagree on whether there is an obligation to inform CARU in respect of the extraction and use of water from the river for industrial purposes by the Orion (Botnia) mill. Argentina takes the view that the authorization granted by the Uruguayan Ministry of Transport and Public Works on 12 September 2006 concerns an activity of sufficient importance (“entidad suficiente”) to affect the régime of the river or the quality of its waters and that, in this matter, Uruguay should have followed the procedure laid down in Articles 7 to 12 of the 1975 Statute. For its part, Uruguay maintains that this activity forms an integral part of the Orion (Botnia) mill project as a whole, and that the 1975 Statute does not require CARU to be informed of each step in furtherance of the planned works.

98. The Court points out that while the Parties are agreed in recognizing that CARU should have been informed of the two planned mills and the plan to construct the port terminal at Fray Bentos, they nonetheless differ as regards the content of the information which should be provided to CARU and as to when this should take place.

99. Argentina has argued that the content of the obligation to inform must be determined in the light of its objective, which is to prevent threats to navigation, the régime of the river or the quality of the waters. According to Argentina, the plan which CARU must be informed of may be at a very early stage, since it is simply a matter of allowing the Commission to “determine on a preliminary basis”, within a very short period of 30 days, whether the plan “might cause significant damage to the other party”. It is only in the following phase of the procedure that the substance of the obligation to inform is said to become more extensive. In Argentina’s view, however, CARU must be informed prior to the authorization or implementation of a project on the River Uruguay.

100. Citing the terms of Article 7, first paragraph, of the 1975 Statute, Uruguay gives a different interpretation of it, taking the view that the requirement to inform CARU specified by this provision cannot occur in the very early stages of planning, because there could not be sufficient information available to the Commission for it to determine whether or not the plan might cause significant damage to the other State. For that, according to Uruguay, the project would have to have reached a stage where all the technical data on it are available. As the Court will consider further below, Uruguay seeks to link the content of the information to the time when it should be provided, which may even be after the State concerned has granted an initial environmental authorization.

101. The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation “is now part of the corpus of international law relating to the environment” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29).

102. In the view of the Court, the obligation to inform CARU allows for the initiation of co-operation between the Parties which is necessary in order to fulfil the obligation of prevention. This first procedural stage results in the 1975 Statute not being applied to activities which would appear to cause damage only to the State in whose territory they are carried out.

103. The Court observes that with regard to the River Uruguay, which constitutes a shared resource, “significant damage to the other party” (Article 7, first paragraph, of the 1975 Statute) may result from impairment of navigation, the régime of the river or the quality of its waters. Moreover, Article 27 of the 1975 Statute stipulates that: “[t]he right of each party to use the waters of the river, within its jurisdiction, for domestic, sanitary, industrial and agricultural purposes shall be exercised without prejudice to the application of the procedure laid down in Articles 7 to 12 when the use is liable to affect the régime of the river or the quality of its waters”.

104. The Court notes that, in accordance with the terms of Article 7, first paragraph, the information which must be provided to CARU, at this initial stage of the procedure, has to enable it to determine swiftly and on a preliminary basis whether the plan might cause significant damage to the other party. For CARU, at this stage, it is a question of deciding whether or not the plan falls under the co-operation procedure laid down by the 1975 Statute, and not of pronouncing on its actual impact on the river and the quality of its waters. This explains, in the opinion of the Court, the difference between the terminology of the first paragraph of Article 7, concerning the requirement to inform CARU, and that of the third paragraph, concerning the content of the notification to be addressed to the other party at a later stage, enabling it “to assess the probable impact of such works on navigation, the régime of the river or the quality of its waters”.

105. The Court considers that the State planning activities referred to in Article 7 of the Statute is required to inform CARU as soon as it is in possession of a plan which is sufficiently developed to enable CARU to make the preliminary assessment (required by paragraph 1 of that provision) of whether the proposed works might cause significant damage to the other party. At that stage, the information provided will not necessarily consist of a full assessment of the environmental impact of the project, which will often require further time and resources, although, where more complete information is available, this should, of course, be transmitted to CARU to give it the best possible basis on which to make its preliminary assessment. In any event, the duty to inform CARU will become applicable at the stage when the relevant authority has had the project referred to it with the aim of obtaining initial environmental authorization and before the granting of that authorization.

106. The Court observes that, in the present case, Uruguay did not transmit to CARU the information required by Article 7, first paragraph, in respect of the CMB (ENCE) and Orion (Botnia) mills, despite the requests made to it by the Commission to that effect on several occasions, in particular on 17 October 2002 and 21 April 2003 with regard to the CMB (ENCE) mill, and on 16 November 2004 with regard to the Orion (Botnia) mill. Uruguay merely sent CARU, on 14 May 2003, a summary for public release of the environmental impact assessment for the CMB (ENCE) mill. CARU considered this document to be inadequate and again requested further information from Uruguay on 15 August 2003 and 12 September 2003. Moreover, Uruguay did not transmit any document to CARU regarding the Orion (Botnia) mill. Consequently, Uruguay issued the initial environmental authorizations to CMB on 9 October 2003 and to Botnia on 14 February 2005 without complying with the procedure laid down in Article 7, first paragraph. Uruguay therefore came to a decision on the environmental impact of the projects without involving CARU, thereby simply giving effect to Article 17, third paragraph, of Uruguayan Decree No. 435/994 of 21 September 1994, Environmental Impact Assessment Regulation, according to which the Ministry of Housing, Land Use Planning and Environmental Affairs may grant the initial environmental authorization provided that the adverse environmental impacts of the project remain within acceptable limits.

107. The Court further notes that on 12 April 2005 Uruguay granted an authorization to Botnia for the first phase of the construction of the Orion (Botnia) mill and, on 5 July 2005, an authorization to construct a port terminal for its exclusive use and to utilize the river bed for industrial purposes, without informing CARU of these projects in advance.

108. With regard to the extraction and use of water from the river, of which CARU should have first been informed, according to Argentina, the Court takes the view that this is an activity which forms an integral part of the commissioning of the Orion (Botnia) mill and therefore did not require a separate referral to CARU.

109. However, Uruguay maintains that CARU was made aware of the plans for the mills by representatives of ENCE on 8 July 2002, and no later than 29 April 2004 by representatives of Botnia, before the initial environmental authorizations were issued. Argentina, for its part, considers that these so-called private dealings, whatever form they may have taken, do not constitute performance of the obligation imposed on the Parties by Article 7, first paragraph.

110. The Court considers that the information on the plans for the mills which reached CARU via the companies concerned or from other non-governmental sources cannot substitute for the obligation to inform laid down in Article 7, first paragraph, of the 1975 Statute, which is borne by the party planning to construct the works referred to in that provision. Similarly, in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the Court observed that “[i]f the information eventually came to Djibouti through the press, the information disseminated in this way could not be taken into account for the purposes of the application of Article 17 [of the Convention on Mutual Assistance in Criminal Matters between the two countries, providing that ‘[r]easons shall be given for any refusal of mutual assistance’]” (Judgment of 4 June 2008, para. 150).

111. Consequently, the Court concludes from the above that Uruguay, by not informing CARU of the planned works before the issuing of the initial environmental authorizations for each of the mills and for the port terminal adjacent to the Orion (Botnia) mill, has failed to comply with the obligation imposed on it by Article 7, first paragraph, of the 1975 Statute.

3. Uruguay’s obligation to notify the plans to the other party

112. The Court notes that, under the terms of Article 7, second paragraph, of the 1975 Statute, if CARU decides that the plan might cause significant damage to the other party or if a decision cannot be reached in that regard, “the party concerned shall notify the other party of this plan through the said Commission”.

Article 7, third paragraph, of the 1975 Statute sets out in detail the content of this notification, which

“shall describe the main aspects of the work and . . . any other technical data that will enable the notified party to assess the probable impact of such works on navigation, the régime of the river or the quality of its waters”.

113. In the opinion of the Court, the obligation to notify is intended to create the conditions for successful co-operation between the parties, enabling them to assess the plan’s impact on the river on the basis of the fullest possible information and, if necessary, to negotiate the adjustments needed to avoid the potential damage that it might cause.

114. Article 8 stipulates a period of 180 days, which may be extended by the Commission, for the notified party to respond in connection with the plan, subject to it requesting the other party, through the Commission, to supplement as necessary the documentation it has provided. If the notified party raises no objections, the other party may carry out or authorize the work (Article 9). Otherwise, the former must notify the latter of those aspects of the work which may cause it damage and of the suggested changes (Article 11), thereby opening a further 180-day period of negotiation in which to reach an agreement (Article 12).

115. The obligation to notify is therefore an essential part of the process leading the parties to consult in order to assess the risks of the plan and to negotiate possible changes which may eliminate those risks or minimize their effects.

116. The Parties agree on the need for a full environmental impact assessment in order to assess any significant damage which might be caused by a plan.

117. Uruguay takes the view that such assessments were carried out in accordance with its legislation (Decree No. 435/994 of 21 September 1994, Environmental Impact Assessment Regulation), submitted to DINAMA for consideration and transmitted to Argentina on 7 November 2003 in the case of the CMB (ENCE) project and on 19 August 2005 for the Orion (Botnia) project. According to Uruguay, DINAMA asked the companies concerned for all the additional information that was required to supplement the original environmental impact assessments submitted to it, and only when it was satisfied did it propose to the Ministry of the Environment that the initial environmental authorizations requested should be issued, which they were to CMB on 9 October 2003 and to Botnia on 14 February 2005. Uruguay maintains that it was not required to transmit the environmental impact assessments to Argentina before issuing the initial environmental authorizations to the companies, these authorizations having been adopted on the basis of its legislation on the subject.

118. Argentina, for its part, first points out that the environmental impact assessments transmitted to it by Uruguay were incomplete, particularly in that they made no provision for alternative sites for the mills and failed to include any consultation of the affected populations. The Court will return later in the Judgment to the substantive conditions which must be met by environmental impact assessments (see paragraphs 203 to 219). Furthermore, in procedural terms, Argentina considers that the initial environmental authorizations should not have been granted to the companies before it had received the complete environmental impact assessments, and that it was unable to exercise its rights in this context under Articles 7 to 11 of the 1975 Statute.

119. The Court notes that the environmental impact assessments which are necessary to reach a decision on any plan that is liable to cause significant transboundary harm to another State must be notified by the party concerned to the other party, through CARU, pursuant to Article 7, second and third paragraphs, of the 1975 Statute. This notification is intended to enable the notified party to participate in the process of ensuring that the assessment is complete, so that it can then consider the plan and its effects with a full knowledge of the facts (Article 8 of the 1975 Statute).

120. The Court observes that this notification must take place before the State concerned decides on the environmental viability of the plan, taking due account of the environmental impact assessment submitted to it.

121. In the present case, the Court observes that the notification to Argentina of the environmental impact assessments for the CMB (ENCE) and Orion (Botnia) mills did not take place through CARU, and that Uruguay only transmitted those assessments to Argentina after having issued the initial environmental authorizations for the two mills in question. Thus in the case of CMB (ENCE), the matter was notified to Argentina on 27 October and 7 November 2003, whereas the initial environmental authorization had already been issued on 9 October 2003. In the case of Orion (Botnia), the file was transmitted to Argentina between August 2005 and January 2006, whereas the initial environmental authorization had been granted on 14 February 2005. Uruguay ought not, prior to notification, to have issued the initial environmental authorizations and the authorizations for construction on the basis of the environmental impact assessments submitted to DINAMA. Indeed by doing so, Uruguay gave priority to its own legislation over its procedural obligations under the 1975 Statute and disregarded the well-established customary rule reflected in Article 27 of the Vienna Convention on the Law of Treaties, according to which “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

122. The Court concludes from the above that Uruguay failed to comply with its obligation to notify the plans to Argentina through CARU under Article 7, second and third paragraphs, of the 1975 Statute.

C. Whether the Parties agreed to derogate from the procedural obligations set out in the 1975 Statute

123. Having thus examined the procedural obligations laid down by the 1975 Statute, the Court now turns to the question of whether the Parties agreed, by mutual consent, to derogate from them, as alleged by Uruguay.

124. In this respect the Parties refer to two “agreements” reached on 2 March 2004 and 5 May 2005; however, they hold divergent views regarding their scope and content.

1. The “understanding” of 2 March 2004 between Argentina and Uruguay

125. The Court recalls that, after the issuing of the initial environmental authorization to CMB by Uruguay, without CARU having been able to carry out the functions assigned to it in this context by the 1975 Statute, the Foreign Ministers of the Parties agreed on 2 March 2004 on the procedure to be followed, as described in the minutes of the extraordinary meeting of CARU of 15 May 2004. The relevant extract from those minutes reads as follows in Spanish:

“II) En fecha 2 de marzo de 2004 los Cancilleres de Argentina y Uruguay llegaron a un entendimiento con relación al curso de acción que se dará al tema, esto es, facilitar por parte del gobierno uruguayo, la información relativa a la construcción de la planta y, en relación a la fase operativa, proceder a realizar el monitoreo, por parte de CARU, de la calidad de las aguas conforme a su Estatuto.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I) Ambas delegaciones reafirmaron el compromiso de los Ministros de Relaciones Exteriores de la República Argentina y de la República Oriental del Uruguay de fecha 2 de marzo de 2004 por el cual el Uruguay comunicará la información relativa a la construcción de la planta incluyendo el Plan de Gestión Ambiental. En tal sentido, la CARU recibirá los Planes de Gestión Ambiental para la construcción y operación de la planta que presente la empresa al gobierno uruguayo una vez que le sean remitidos por la delegación uruguaya.” (Emphasis in the original.)

Argentina and Uruguay have provided the Court, respectively, with French and English translations of these minutes. In view of the discrepancies between those two translations, the Court will use the following translation:

“(II) On 2 March 2004, the Foreign Ministers of Argentina and Uruguay reached an understanding on how to proceed in the matter, namely, that the Uruguayan Government would provide information on the construction of the mill and that, in terms of the operational phase, CARU would carry out monitoring of water quality in accordance with its Statute.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(I) Both delegations reaffirmed the arrangement which had been come to by the Foreign Ministers of the Republic of Argentina and the Eastern Republic of Uruguay on 2 March 2004, whereby Uruguay would communicate information on the construction of the mill, including the environmental management plan. As a result, CARU would receive the environmental management plans for the construction and operation of the mill provided by the company to the Uruguayan Government, when these were forwarded to it by the Uruguayan delegation.” (Emphasis in the original.)

[Translation by the Court.]

126. Uruguay considers that, under the terms of this “understanding”, the Parties agreed on the approach to be followed in respect of the CMB (ENCE) project, outside CARU, and that there was no reason in law or logic to prevent them derogating from the procedures outlined in the 1975 Statute pursuant to an appropriate bilateral agreement. The said “understanding”, according to Uruguay, only covered the transmission to CARU of the Environmental Management Plans for the construction and operation of the (CMB) ENCE mill. It supposedly thereby puts an end to any dispute with Argentina regarding the procedure laid down in Article 7 of the 1975 Statute. Lastly, Uruguay maintains that the “understanding” of 2 March 2004 on the (CMB) ENCE project was later extended to include the Orion (Botnia) project, since the PROCEL water quality monitoring plan put in place by CARU’s Subcommittee on Water Quality to implement that “understanding” related to the activity of “both plants”, the CMB (ENCE) and Orion (Botnia) mills, the plural having been used in the title and text of the Subcommittee’s report.

127. Argentina, for its part, maintains that the “understanding” between the two Ministers of 2 March 2004 was intended to ensure compliance with the procedure laid down by the 1975 Statute and thus to reintroduce the CMB (ENCE) project within CARU, ending the dispute on CARU’s jurisdiction to deal with the project. Argentina claims that it reiterated to the organs within CARU that it had not given up its rights under Article 7, although it accepted that the dispute between itself and Uruguay in this respect could have been resolved if the procedure contemplated in the “understanding” of 2 March 2004 had been brought to a conclusion. According to Argentina, however, Uruguay never transmitted the required information to CARU as it undertook to do in the “understanding” of 2 March 2004. Argentina also denies that the “understanding” of 2 March 2004 was extended to the Orion (Botnia) mill; the reference to both future plants in the PROCEL plan does not in any way signify, in its view, the renunciation of the procedure laid down by the 1975 Statute.

128. The Court first notes that while the existence of the “understanding” of 2 March 2004, as minuted by CARU, has not been contested by the Parties, they differ as to its content and scope. Whatever its specific designation and in whatever instrument it may have been recorded (the CARU minutes), this “understanding” is binding on the Parties, to the extent that they have consented to it and must be observed by them in good faith. They are entitled to depart from the procedures laid down by the 1975 Statute, in respect of a given project pursuant to an appropriate bilateral agreement. The Court recalls that the Parties disagree on whether the procedure for communicating information provided for by the “understanding” would, if applied, replace that provided for by the 1975 Statute. Be that as it may, such replacement was dependent on Uruguay complying with the procedure laid down in the “understanding”.

129. The Court finds that the information which Uruguay agreed to transmit to CARU in the “understanding” of 2 March 2004 was never transmitted. Consequently, the Court cannot accept Uruguay’s contention that the “understanding” put an end to its dispute with Argentina in respect of the CMB (ENCE) mill, concerning implementation of the procedure laid down by Article 7 of the 1975 Statute.

130. Further, the Court observes that, when this “understanding” was reached, only the CMB (ENCE) project was in question, and that it therefore cannot be extended to the Orion (Botnia) project, as Uruguay claims. The reference to both mills is made only as from July 2004, in the context of the PROCEL plan. However, this plan only concerns the measures to monitor and control the environmental quality of the river waters in the areas of the pulp mills, and not the procedures under Article 7 of the 1975 Statute.

131. The Court concludes that the “understanding” of 2 March 2004 would have had the effect of relieving Uruguay of its obligations under Article 7 of the 1975 Statute, if that was the purpose of the “understanding”, only if Uruguay had complied with the terms of the “understanding”. In the view of the Court, it did not do so. Therefore the “understanding” cannot be regarded as having had the effect of exempting Uruguay from compliance with the procedural obligations laid down by the 1975 Statute.

2. The agreement setting up the High-Level Technical Group (the GTAN)

132. The Court notes that, in furtherance of the agreement reached on 5 May 2005 between the Presidents of Argentina and Uruguay (see paragraph 40 above), the Foreign Ministries of the two States issued a press release on 31 May 2005 announcing the creation of the High-Level Technical Group, referred to by the Parties as the GTAN. According to this communiqué:

“In conformity with what was agreed to by the Presidents of Argentina and Uruguay, the Foreign Ministries of both of our countries constitute, under their supervision, a Group of Technical Experts for complementary studies and analysis, exchange of information and follow-up on the effects that the operation of the cellulose plants that are being constructed in the Eastern Republic of Uruguay will have on the ecosystem of the shared Uruguay River.
This Group . . . is to produce an initial report within a period of 180 days.”

133. Uruguay regards this press release as an agreement that binds the two States, whereby they decided to make the GTAN the body within which the direct negotiations between the Parties provided for by Article 12 of the 1975 Statute would take place, since its purpose was to analyse the effects on the environment of the “operation of the cellulose plants that are being constructed in the Eastern Republic of Uruguay”. Uruguay infers from this that the Parties were agreed on the construction of the mills and that they had limited the extent of the dispute between them to the environmental risks caused by their operation. Uruguay sees proof of this in the referral to the Court on the basis of Article 12 of the 1975 Statute, which allows either Party to apply to the Court in the event of the negotiations failing to produce an agreement within the period of 180 days.

According to Uruguay, therefore, the agreement contained in the press release of 31 May 2005, by paving the way for the direct negotiations provided for in Article 12, covered any possible procedural irregularities in relation to Articles 7 et seq. of the 1975 Statute. Uruguay points out that it communicated all the necessary information to Argentina during the 12 meetings held by the GTAN and that it transmitted the Orion (Botnia) port project to CARU, as agreed by the Parties at the first meeting of the GTAN.

134. Uruguay further notes that the 1975 Statute is silent as to whether the notifying State may or may not implement a project while negotiations are ongoing. It acknowledges that, under international law, the initiating State must refrain from doing so during the period of negotiation, but takes the view that this does not apply to all work and, in particular, that preparatory work is permitted. Uruguay acknowledges that it carried out such work, for example construction of the foundations for the Orion (Botnia) mill, but in its view this did not involve faits accomplis which prevented the negotiations from reaching a conclusion. Uruguay also considers that it had no legal obligation to suspend any and all work on the port.

135. Argentina considers that no acceptance on its part of the construction of the disputed mills can be inferred from the terms of the press release of 31 May 2005. It submits that in creating the GTAN, the Parties did not decide to substitute it for CARU, but regarded it as a means of negotiation that would co-exist with the latter. Contrary to Uruguay, Argentina takes the view that this matter has been submitted to the Court on the basis of Article 60 of the 1975 Statute and not of Article 12, since Uruguay, by its conduct, has prevented the latter from being used as a basis, having allegedly disregarded the entire procedure laid down in Chapter II of the Statute. Argentina therefore sees it as for the Court to pronounce on all the breaches of the 1975 Statute, including and not limited to the authorization for the construction of the disputed mills.

136. Argentina submits that Uruguay, by its conduct, frustrated the procedures laid down in Articles 7 to 9 of the 1975 Statute and that, during the period of negotiation within the GTAN, Uruguay continued the construction work on the Orion (Botnia) mill and began building the port terminal. During that same period, Argentina reiterated, within CARU, the need for Uruguay to comply with its procedural obligations under Articles 7 to 12 of the 1975 Statute and to suspend the works. Lastly, Argentina rejects Uruguay’s claim that the work on the foundations of the Orion (Botnia) mill, its chimney and the port was merely preliminary in nature and cannot be regarded as the beginning of construction work as such. For Argentina, such a distinction is groundless and cannot be justified by the nature of the work carried out.

137. The Court first points out that there is no reason to distinguish, as Uruguay and Argentina have both done for the purpose of their respective cases, between referral on the basis of Article 12 and of Article 60 of the 1975 Statute. While it is true that Article 12 provides for recourse to the procedure indicated in Chapter XV, should the negotiations fail to produce an agreement within the 180-day period, its purpose ends there. Article 60 then takes over, in particular its first paragraph, which enables either Party to submit to the Court any dispute concerning the interpretation or application of the Statute which cannot be settled by direct negotiations. This wording also covers a dispute relating to the interpretation or application of Article 12, like any other provision of the 1975 Statute.

138. The Court notes that the press release of 31 May 2005 sets out an agreement between the two States to create a negotiating framework, the GTAN, in order to study, analyse and exchange information on the effects that the operation of the cellulose plants that were being constructed in the Eastern Republic of Uruguay could have on the ecosystem of the shared Uruguay River, with “the group [having] to produce an initial report within a period of 180 days”.

139. The Court recognizes that the GTAN was created with the aim of enabling the negotiations provided for in Article 12 of the 1975 Statute, also for a 180-day period, to take place. Under Article 11, these negotiations between the parties with a view to reaching an agreement are to be held once the notified party has sent a communication to the other party, through the Commission, specifying

“which aspects of the work or the programme of operations might significantly impair navigation, the régime of the river or the quality of its waters, the technical reasons on which this conclusion is based and the changes suggested to the plan or programme of operations”.

The Court is aware that the negotiation provided for in Article 12 of the 1975 Statute forms part of the overall procedure laid down in Articles 7 to 12, which is structured in such a way that the parties, in association with CARU, are able, at the end of the process, to fulfil their obligation to prevent any significant transboundary harm which might be caused by potentially harmful activities planned by either one of them.

140. The Court therefore considers that the agreement to set up the GTAN, while indeed creating a negotiating body capable of enabling the Parties to pursue the same objective as that laid down in Article 12 of the 1975 Statute, cannot be interpreted as expressing the agreement of the Parties to derogate from other procedural obligations laid down by the Statute.

141. Consequently, the Court finds that Argentina, in accepting the creation of the GTAN, did not give up, as Uruguay claims, the other procedural rights belonging to it by virtue of the 1975 Statute, nor the possibility of invoking Uruguay’s responsibility for any breach of those rights. Argentina did not, in the agreement to set up the GTAN, “effect a clear and unequivocal waiver” of its rights under the 1975 Statute (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 247, para. 13). Nor did it consent to suspending the operation of the procedural provisions of the 1975 Statute. Indeed, under Article 57 of the Vienna Convention on the Law of Treaties of 23 May 1969, concerning “[s]uspension of the operation of a treaty”, including, according to the International Law Commission’s commentary, suspension of “the operation of . . . some of its provisions” (Yearbook of the International Law Commission, 1966, Vol. II, p. 251), suspension is only possible “in conformity with the provisions of the treaty” or “by consent of all the parties”.

142. The Court further observes that the agreement to set up the GTAN, in referring to “the cellulose plants that are being constructed in the Eastern Republic of Uruguay”, is stating a simple fact and cannot be interpreted, as Uruguay claims, as an acceptance of their construction by Argentina.

143. The Court finds that Uruguay was not entitled, for the duration of the period of consultation and negotiation provided for in Articles 7 to 12 of the 1975 Statute, either to construct or to authorize the construction of the planned mills and the port terminal. It would be contrary to the object and purpose of the 1975 Statute to embark on disputed activities before having applied the procedures laid down by the “joint machinery necessary for the optimum and rational utilization of the [r]iver” (Article 1). However, Article 9 provides that: “[i]f the notified party raises no objections or does not respond within the period established in Article 8 [180 days], the other party may carry out or authorize the work planned”.

144. Consequently, in the opinion of the Court, as long as the procedural mechanism for co-operation between the parties to prevent significant damage to one of them is taking its course, the State initiating the planned activity is obliged not to authorize such work and, a fortiori, not to carry it out.

145. The Court notes, moreover, that the 1975 Statute is perfectly in keeping with the requirements of international law on the subject, since the mechanism for co-operation between States is governed by the principle of good faith. Indeed, according to customary international law, as reflected in Article 26 of the 1969 Vienna Convention on the Law of Treaties, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”. That applies to all obligations established by a treaty, including procedural obligations which are essential to co-operation between States. The Court recalled in the cases concerning Nuclear Tests (Australia v. France) and Nuclear Tests (New Zealand v. France):

“One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation …” (Judgments, I.C.J. Reports 1974, p. 268, para. 46, and p. 473, para. 49; see also Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94.)

146. The Court has also had occasion to draw attention to the characteristics of the obligation to negotiate and to the conduct which this imposes on the States concerned: “[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful” (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85).

147. In the view of the Court, there would be no point to the co-operation mechanism provided for by Articles 7 to 12 of the 1975 Statute if the party initiating the planned activity were to authorize or implement it without waiting for that mechanism to be brought to a conclusion. Indeed, if that were the case, the negotiations between the parties would no longer have any purpose.

148. In this respect, contrary to what Uruguay claims, the preliminary work on the pulp mills on sites approved by Uruguay alone does not constitute an exception. This work does in fact form an integral part of the construction of the planned mills (see paragraphs 39 and 42 above).

149. The Court concludes from the above that the agreement to set up the GTAN did not permit Uruguay to derogate from its obligations of information and notification under Article 7 of the 1975 Statute, and that by authorizing the construction of the mills and the port terminal at Fray Bentos before the expiration of the period of negotiation, Uruguay failed to comply with the obligation to negotiate laid down by Article 12 of the Statute. Consequently, Uruguay disregarded the whole of the co-operation mechanism provided for in Articles 7 to 12 of the 1975 Statute.

150. Given that “an obligation to negotiate does not imply an obligation to reach an agreement” (Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116), it remains for the Court to examine whether the State initiating the plan is under certain obligations following the end of the negotiation period provided for in Article 12.

D. Uruguay’s obligations following the end of the negotiation period

151. Article 12 refers the Parties, should they fail to reach an agreement within 180 days, to the procedure indicated in Chapter XV.

Chapter XV contains a single article, Article 60, according to which:

“Any dispute concerning the interpretation or application of the Treaty and the Statute which cannot be settled by direct negotiations may be submitted by either party to the International Court of Justice.
In the cases referred to in Articles 58 and 59, either party may submit any dispute concerning the interpretation or application of the Treaty and the Statute to the International Court of Justice, when it has not been possible to settle the dispute within 180 days following the notification referred to in Article 59.”

152. According to Uruguay, the 1975 Statute does not give one party a “right of veto” over the projects initiated by the other. It does not consider there to be a “no construction obligation” borne by the State initiating the projects until such time as the Court has ruled on the dispute. Uruguay points out that the existence of such an obligation would enable one party to block a project that was essential for the sustainable development of the other, something that would be incompatible with the “optimum and rational utilization of the [r]iver”. On the contrary, for Uruguay, in the absence of any specific provision in the 1975 Statute, reference should be made to general international law, as reflected in the 2001 draft Articles of the International Law Commission on Prevention of Transboundary Harm from Hazardous Activities (Yearbook of the International Law Commission, 2001, Vol. II, Part Two); in particular, draft Article 9, paragraph 3, concerning “Consultations on preventive measures”, states that “[i]f the consultations . . . fail to produce an agreed solution, the State of origin shall nevertheless take into account the interests of the State likely to be affected in case it decides to authorize the activity to be pursued . . .”.

153. Argentina, on the other hand, maintains that Article 12 of the 1975 Statute makes the Court the final decision-maker where the parties have failed to reach agreement within 180 days following the notification referred to in Article 11. It is said to follow from Article 9 of the Statute, interpreted in the light of Articles 11 and 12 and taking account of its object and purpose, that if the notified party raises an objection, the other party may neither carry out nor authorize the work in question until the procedure laid down in Articles 7 to 12 has been completed and the Court has ruled on the project. Argentina therefore considers that, during the dispute settlement proceedings before the Court, the State which is envisaging carrying out the work cannot confront the other Party with the fait accompli of having carried it out.

Argentina argues that the question of the “veto” raised by Uruguay is inappropriate, since neither of the parties can impose its position in respect of the construction works and it will ultimately be for the Court to settle the dispute, if the parties disagree, by a decision that will have the force of res judicata. It could be said, according to Argentina, that Uruguay has no choice but to come to an agreement with it or to await the settlement of the dispute. Argentina contends that, by pursuing the construction and commissioning of the Orion (Botnia) mill and port, Uruguay has committed a continuing violation of the procedural obligations under Chapter II of the 1975 Statute.

154. The Court observes that the “no construction obligation”, said to be borne by Uruguay between the end of the negotiation period and the decision of the Court, is not expressly laid down by the 1975 Statute and does not follow from its provisions. Article 9 only provides for such an obligation during the performance of the procedure laid down in Articles 7 to 12 of the Statute.

Furthermore, in the event of disagreement between the parties on the planned activity persisting at the end of the negotiation period, the Statute does not provide for the Court, to which the matter would be submitted by the State concerned, according to Argentina, to decide whether or not to authorize the activity in question. The Court points out that, while the 1975 Statute gives it jurisdiction to settle any dispute concerning its interpretation or application, it does not however confer on it the role of deciding in the last resort whether or not to authorize the planned activities. Consequently, the State initiating the plan may, at the end of the negotiation period, proceed with construction at its own risk.

The Court cannot uphold the interpretation of Article 9 according to which any construction is prohibited until the Court has given its ruling pursuant to Articles 12 and 60.

155. Article 12 does not impose an obligation on the parties to submit a matter to the Court, but gives them the possibility of doing so, following the end of the negotiation period. Consequently, Article 12 can do nothing to alter the rights and obligations of the party concerned as long as the Court has not ruled finally on them. The Court considers that those rights include that of implementing the project, on the sole responsibility of that party, since the period for negotiation has expired.

156. In its Order of 13 July 2006, the Court took the view that the “construction [of the mills] at the current site cannot be deemed to create a fait accompli” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 78). Thus, in pronouncing on the merits in the dispute between the Parties, the Court is the ultimate guarantor of their compliance with the 1975 Statute.

157. The Court concludes from the above that Uruguay did not bear any “no construction obligation” after the negotiation period provided for in Article 12 expired on 3 February 2006, the Parties having determined at that date that the negotiations undertaken within the GTAN had failed (see paragraph 40). Consequently the wrongful conduct of Uruguay (established in paragraph 149 above) could not extend beyond that period.

158. Having established that Uruguay breached its procedural obligations to inform, notify and negotiate to the extent and for the reasons given above, the Court will now turn to the question of the compliance of that State with the substantive obligations laid down by the 1975 Statute.

IV. SUBSTANTIVE OBLIGATIONS

159. Before taking up the examination of the alleged violations of substantive obligations under the 1975 Statute, the Court will address two preliminary issues, namely, the burden of proof and expert evidence.

A. Burden of proof and expert evidence

160. Argentina contends that the 1975 Statute adopts an approach in terms of precaution whereby “the burden of proof will be placed on Uruguay for it to establish that the Orion (Botnia) mill will not cause significant damage to the environment”. It also argues that the burden of proof should not be placed on Argentina alone as the Applicant, because, in its view, the 1975 Statute imposes an equal onus to persuade - for the one that the plant is innocuous and for the other that it is harmful.

161. Uruguay, on the other hand, asserts that the burden of proof is on Argentina, as the Applicant, in accordance with the Court’s long-standing case law, although it considers that, even if the Argentine position about transferring the burden of proof to Uruguay were correct, it would make no difference given the manifest weakness of Argentina’s case and the extensive independent evidence put before the Court by Uruguay. Uruguay also strongly contests Argentina’s argument that the precautionary approach of the 1975 Statute would imply a reversal of the burden of proof, in the absence of an explicit treaty provision prescribing it as well as Argentina’s proposition that the Statute places the burden of proof equally on both Parties.

162. To begin with, the Court considers that, in accordance with the well-established principle of onus probandi incumbit actori, it is the duty of the party which asserts certain facts to establish the existence of such facts. This principle which has been consistently upheld by the Court (Maritime delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, para. 68; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment of 23 May 2008, para. 45; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 128, para. 204; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101) applies to the assertions of fact both by the Applicant and the Respondent.

163. It is of course to be expected that the Applicant should, in the first instance, submit the relevant evidence to substantiate its claims. This does not, however, mean that the Respondent should not co-operate in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it.

164. Regarding the arguments put forward by Argentina on the reversal of the burden of proof and on the existence, vis-à-vis each Party, of an equal onus to prove under the 1975 Statute, the Court considers that while a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute, it does not follow that it operates as a reversal of the burden of proof. The Court is also of the view that there is nothing in the 1975 Statute itself to indicate that it places the burden of proof equally on both Parties. *

165. The Court now turns to the issue of expert evidence. Both Argentina and Uruguay have placed before the Court a vast amount of factual and scientific material in support of their respective claims. They have also submitted reports and studies prepared by the experts and consultants commissioned by each of them, as well as others commissioned by the International Finance Corporation in its quality as lender to the project. Some of these experts have also appeared before the Court as counsel for one or the other of the Parties to provide evidence.

166. The Parties, however, disagree on the authority and reliability of the studies and reports submitted as part of the record and prepared, on the one hand, by their respective experts and consultants, and on the other, by the experts of the IFC, which contain, in many instances, conflicting claims and conclusions. In reply to a question put by a judge, Argentina stated that the weight to be given to such documents should be determined by reference not only to the “independence” of the author, who must have no personal interest in the outcome of the dispute and must not be an employee of the Government, but also by reference to the characteristics of the report itself, in particular the care with which its analysis was conducted, its completeness, the accuracy of the data used, and the clarity and coherence of the conclusions drawn from such data. In its reply to the same question, Uruguay suggested that reports prepared by retained experts for the purposes of the proceedings and submitted as part of the record should not be regarded as independent and should be treated with caution; while expert statements and evaluations issued by a competent international organization, such as the IFC, or those issued by the consultants engaged by that organization should be regarded as independent and given “special weight”.

167. The Court has given most careful attention to the material submitted to it by the Parties, as will be shown in its consideration of the evidence below with respect to alleged violations of substantive obligations. Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.

168. As for the independence of such experts, the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that, despite the volume and complexity of the factual information submitted to it, it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate. Thus, in keeping with its practice, the Court will make its own determination of the facts, on the basis of the evidence presented to it, and then it will apply the relevant rules of international law to those facts which it has found to have existed.

B. Alleged violations of substantive obligations

169. The Court now turns to the examination of the alleged violations by Uruguay of its substantive obligations under the 1975 Statute by authorizing the construction and operation of the Orion (Botnia) mill. In particular, Argentina contends that Uruguay has breached its obligations under Articles 1, 27, 35, 36 and 41 (a) of the 1975 Statute and “other obligations deriving from . . . general, conventional and customary international law which are necessary for the application of the 1975 Statute”. Uruguay rejects these allegations. Uruguay considers furthermore that Article 27 of the 1975 Statute allows the parties to use the waters of the river for domestic, sanitary, industrial and agricultural purposes.

1. The obligation to contribute to the optimum and rational utilization of the river (Article 1)

170. According to Argentina, Uruguay has breached its obligation to contribute to the “optimum and rational utilization of the river” by failing to co-ordinate with Argentina on measures necessary to avoid ecological change, and by failing to take the measures necessary to prevent pollution. Argentina also maintains that, in interpreting the 1975 Statute (in particular Articles 27, 35, and 36 thereof) according to the principle of equitable and reasonable use, account must be taken of all pre-existing legitimate uses of the river, including in particular its use for recreational and tourist purposes.

171. For Uruguay, the object and purpose of the 1975 Statute is to establish a structure for co-operation between the Parties through CARU in pursuit of the shared goal of equitable and sustainable use of the water and biological resources of the river. Uruguay contends that it has in no way breached the principle of equitable and reasonable use of the river and that this principle provides no basis for favouring pre-existing uses of the river, such as tourism or fishing, over other, new uses.

172. The Parties also disagree on the scope and implications of Article 27 of the 1975 Statute on the right of each Party to use the waters of the river, within its jurisdiction, for domestic, sanitary, industrial and agricultural purposes.

173. The Court observes that Article 1, as stated in the title to Chapter I of the 1975 Statute, sets out the purpose of the Statute. As such, it informs the interpretation of the substantive obligations, but does not by itself lay down specific rights and obligations for the parties. Optimum and rational utilization is to be achieved through compliance with the obligations prescribed by the 1975 Statute for the protection of the environment and the joint management of this shared resource. This objective must also be ensured through CARU, which constitutes “the joint machinery” necessary for its achievement, and through the regulations adopted by it as well as the regulations and measures adopted by the Parties.

174. The Court recalls that the Parties concluded the treaty embodying the 1975 Statute, in implementation of Article 7 of the 1961 Treaty, requiring the Parties jointly to establish a régime for the use of the river covering, inter alia, provisions for preventing pollution and protecting and preserving the aquatic environment. Thus, optimum and rational utilization may be viewed as the cornerstone of the system of co-operation established in the 1975 Statute and the joint machinery set up to implement this co-operation.

175. The Court considers that the attainment of optimum and rational utilization requires a balance between the Parties’ rights and needs to use the river for economic and commercial activities on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities, on the other. The need for this balance is reflected in various provisions of the 1975 Statute establishing rights and obligations for the Parties, such as Articles 27, 36, and 41. The Court will therefore assess the conduct of Uruguay in authorizing the construction and operation of the Orion (Botnia) mill in the light of those provisions of the 1975 Statute, and the rights and obligations prescribed therein.

176. The Court has already addressed in paragraphs 84 to 93 above the role of CARU with respect to the procedural obligations laid down in the 1975 Statute. In addition to its role in that context, the functions of CARU relate to almost all aspects of the implementation of the substantive provisions of the 1975 Statute. Of particular relevance in the present case are its functions relating to rule-making in respect of conservation and preservation of living resources, the prevention of pollution and its monitoring, and the co-ordination of actions of the Parties. These functions will be examined by the Court in its analysis of the positions of the Parties with respect to the interpretation and application of Articles 36 and 41 of the 1975 Statute.

177. Regarding Article 27, it is the view of the Court that its formulation reflects not only the need to reconcile the varied interests of riparian States in a transboundary context and in particular in the use of a shared natural resource, but also the need to strike a balance between the use of the waters and the protection of the river consistent with the objective of sustainable development. The Court has already dealt with the obligations arising from Articles 7 to 12 of the 1975 Statute which have to be observed, according to Article 27, by any Party wishing to exercise its right to use the waters of the river for any of the purposes mentioned therein insofar as such use may be liable to affect the régime of the river or the quality of its waters. The Court wishes to add that such utilization could not be considered to be equitable and reasonable if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account. Consequently, it is the opinion of the Court that Article 27 embodies this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development.

2. The obligation to ensure that the management of the soil and woodland does not impair the régime of the river or the quality of its waters (Article 35)

178. Article 35 of the 1975 Statute provides that the parties:

“undertake to adopt the necessary measures to ensure that the management of the soil and woodland and the use of groundwater and the waters of the tributaries of the river do not cause changes which may significantly impair the régime of the river or the quality of its waters”.

179. Argentina contends that Uruguay’s decision to carry out major eucalyptus planting operations to supply the raw material for the Orion (Botnia) mill has an impact on management of the soil and Uruguayan woodland, but also on the quality of the waters of the river. For its part, Uruguay states that Argentina does not make any arguments that are based on Uruguay’s management of soil or woodland - “nor has it made any allegations concerning the waters of tributaries”.

180. The Court observes that Argentina has not provided any evidence to support its contention. Moreover, Article 35 concerns the management of the soil and woodland as well as the use of groundwater and the water of tributaries, and there is nothing to suggest, in the evidentiary material submitted by Argentina, a direct relationship between Uruguay’s management of the soil and woodland, or its use of ground water and water of tributaries and the alleged changes in the quality of the waters of the River Uruguay which had been attributed by Argentina to the Orion (Botnia) mill. Indeed, while Argentina made lengthy arguments about the effects of the pulp mill discharges on the quality of the waters of the river, no similar arguments have been presented to the Court regarding a deleterious relationship between the quality of the waters of the river and the eucalyptus-planting operations by Uruguay. The Court concludes that Argentina has not established its contention on this matter.

3. The obligation to co-ordinate measures to avoid changes in the ecological balance (Article 36)

181. Argentina contends that Uruguay has breached Article 36 of the 1975 Statute, which places the Parties under an obligation to co-ordinate through CARU the necessary measures to avoid changing the ecological balance of the river. Argentina asserts that the discharges from the Orion (Botnia) mill altered the ecological balance of the river, and cites as examples the 4 February 2009 algal bloom, which, according to it, provides graphic evidence of a change in the ecological balance, as well as the discharge of toxins, which gave rise, in its view, to the malformed rotifers whose pictures were shown to the Court.

182. Uruguay considers that any assessment of the Parties’ conduct in relation to Article 36 of the 1975 Statute must take account of the rules adopted by CARU, because this Article, creating an obligation of co-operation, refers to such rules and does not by itself prohibit any specific conduct. Uruguay takes the position that the mill fully meets CARU requirements concerning the ecological balance of the river, and concludes that it has not acted in breach of Article 36 of the 1975 Statute.

183. It is recalled that Article 36 provides that “[t]he parties shall co-ordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it”.

184. It is the opinion of the Court that compliance with this obligation cannot be expected to come through the individual action of either Party, acting on its own. Its implementation requires co-ordination through the Commission. It reflects the common interest dimension of the 1975 Statute and expresses one of the purposes for the establishment of the joint machinery which is to co-ordinate the actions and measures taken by the Parties for the sustainable management and environmental protection of the river. The Parties have indeed adopted such measures through the promulgation of standards by CARU. These standards are to be found in Sections E3 and E4 of the CARU Digest. One of the purposes of Section E3 is “[t]o protect and preserve the water and its ecological balance”. Similarly, it is stated in Section E4 that the section was developed “in accordance with . . . Articles 36, 37, 38, and 39”.

185. In the view of the Court, the purpose of Article 36 of the 1975 Statute is to prevent any transboundary pollution liable to change the ecological balance of the river by co-ordinating, through CARU, the adoption of the necessary measures. It thus imposes an obligation on both States to take positive steps to avoid changes in the ecological balance. These steps consist not only in the adoption of a regulatory framework, as has been done by the Parties through CARU, but also in the observance as well as enforcement by both Parties of the measures adopted. As the Court emphasized in the Gabčíkovo-Nagymaros case:

“in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140).

186. The Parties also disagree with respect to the nature of the obligation laid down in Article 36, and in particular whether it is an obligation of conduct or of result. Argentina submits that, on a plain meaning, both Articles 36 and 41 of the 1975 Statute establish an obligation of result.

187. The Court considers that the obligation laid down in Article 36 is addressed to both Parties and prescribes the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct. Both Parties are therefore called upon, under Article 36, to exercise due diligence in acting through the Commission for the necessary measures to preserve the ecological balance of the river.

188. This vigilance and prevention is all the more important in the preservation of the ecological balance, since the negative impact of human activities on the waters of the river may affect other components of the ecosystem of the watercourse such as its flora, fauna, and soil. The obligation to co-ordinate, through the Commission, the adoption of the necessary measures, as well as their enforcement and observance, assumes, in this context, a central role in the overall system of protection of the River Uruguay established by the 1975 Statute. It is therefore of crucial importance that the Parties respect this obligation.

189. In light of the above, the Court is of the view that Argentina has not convincingly demonstrated that Uruguay has refused to engage in such co-ordination as envisaged by Article 36, in breach of that provision.

4. The obligation to prevent pollution and preserve the aquatic environment (Article 41)

190. Article 41 provides that:

“Without prejudice to the functions assigned to the Commission in this respect, the parties undertake:
(a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and [adopting appropriate] measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies;
(b) not to reduce in their respective legal systems:
the technical requirements in force for preventing water pollution, and
the severity of the penalties established for violations;
(c) to inform one another of any rules which they plan to prescribe with regard to water pollution in order to establish equivalent rules in their respective legal systems.”

191. Argentina claims that by allowing the discharge of additional nutrients into a river that is eutrophic and suffers from reverse flow and stagnation, Uruguay violated the obligation to prevent pollution, as it failed to prescribe appropriate measures in relation to the Orion (Botnia) mill, and failed to meet applicable international environmental agreements, including the Biodiversity Convention and the Ramsar Convention. It maintains that the 1975 Statute prohibits any pollution which is prejudicial to the protection and preservation of the aquatic environment or which alters the ecological balance of the river. Argentina further argues that the obligation to prevent pollution of the river is an obligation of result and extends not only to protecting the aquatic environment proper, but also to any reasonable and legitimate use of the river, including tourism and other recreational uses.

192. Uruguay contends that the obligation laid down in Article 41 (a) of the 1975 Statute to “prevent . . . pollution” does not involve a prohibition on all discharges into the river. It is only those that exceed the standards jointly agreed by the Parties within CARU in accordance with their international obligations, and that therefore have harmful effects, which can be characterized as “pollution” under Article 40 of the 1975 Statute. Uruguay also maintains that Article 41 creates an obligation of conduct, and not of result, but that it actually matters little since Uruguay has complied with its duty to prevent pollution by requiring the plant to meet best available technology (“BAT”) standards.

193. Before turning to the analysis of Article 41, the Court recalls that:

“The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the 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.)

194. The Court moreover had occasion to stress, in the Gabčíkovo-Nagymaros Project case, that “the Parties together should look afresh at the effects on the environment of the operation of the Gabčíkovo power plant” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140). The Court is mindful of these statements in taking up now the examination of Article 41 of the 1975 Statute.

195. In view of the central role of this provision in the dispute between the Parties in the present case and their profound differences as to its interpretation and application, the Court will make a few remarks of a general character on the normative content of Article 41 before addressing the specific arguments of the Parties. First, in the view of the Court, Article 41 makes a clear distinction between regulatory functions entrusted to CARU under the 1975 Statute, which are dealt with in Article 56 of the Statute, and the obligation it imposes on the Parties to adopt rules and measures individually to “protect and preserve the aquatic environment and, in particular, to prevent its pollution”. Thus, the obligation assumed by the Parties under Article 41, which is distinct from those under Articles 36 and 56 of the 1975 Statute, is to adopt appropriate rules and measures within the framework of their respective domestic legal systems to protect and preserve the aquatic environment and to prevent pollution. This conclusion is supported by the wording of paragraphs (b) and (c) of Article 41, which refer to the need not to reduce the technical requirements and severity of the penalties already in force in the respective legislation of the Parties as well as the need to inform each other of the rules to be promulgated so as to establish equivalent rules in their legal systems.

196. Secondly, it is the opinion of the Court that a simple reading of the text of Article 41 indicates that it is the rules and measures that are to be prescribed by the Parties in their respective legal systems which must be “in accordance with applicable international agreements” and “in keeping, where relevant, with the guidelines and recommendations of international technical bodies”.

197. Thirdly, the obligation to “preserve the aquatic environment, and in particular to prevent pollution by prescribing appropriate rules and measures” is an obligation to act with due diligence in respect of all activities which take place under the jurisdiction and control of each party. It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party. The responsibility of a party to the 1975 Statute would therefore be engaged if it was shown that it had failed to act diligently and thus take all appropriate measures to enforce its relevant regulations on a public or private operator under its jurisdiction. The obligation of due diligence under Article 41 (a) in the adoption and enforcement of appropriate rules and measures is further reinforced by the requirement that such rules and measures must be “in accordance with applicable international agreements” and “in keeping, where relevant, with the guidelines and recommendations of international technical bodies”. This requirement has the advantage of ensuring that the rules and measures adopted by the parties both have to conform to applicable international agreements and to take account of internationally agreed technical standards.

198. Finally, the scope of the obligation to prevent pollution must be determined in light of the definition of pollution given in Article 40 of the 1975 Statute. Article 40 provides that: “For the purposes of this Statute, pollution shall mean the direct or indirect introduction by man into the aquatic environment of substances or energy which have harmful effects.” The term “harmful effects” is defined in the CARU Digest as:

“any alteration of the water quality that prevents or hinders any legitimate use of the water, that causes deleterious effects or harm to living resources, risks to human health, or a threat to water activities including fishing or reduction of recreational activities” (Title I, Chapter I, Section. 2, Article 1 (c) of the Digest (E3)).

199. The Digest expresses the will of the Parties and their interpretation of the provisions of the 1975 Statute. Article 41, not unlike many other provisions of the 1975 Statute, lays down broad obligations agreed to by the Parties to regulate and limit their use of the river and to protect its environment. These broad obligations are given more specific content through the co-ordinated rule-making action of CARU as established under Article 56 of the 1975 Statute or through the regulatory action of each of the parties, or by both means. The two regulatory actions are meant to complement each other. As discussed below (see paragraphs 201 to 202, and 214), CARU standards concern mainly water quality. The CARU Digest sets only general limits on certain discharges or effluents from industrial plants such as: “hydrocarbons”, “sedimentable solids”, and “oils and greases”. As the Digest makes explicit, those matters are left to each party to regulate. The Digest provides that, as regards effluents within its jurisdiction, each party shall take the appropriate “corrective measures” in order to assure compliance with water quality standards (CARU Digest, Sec. E3: Pollution, Title 2, Chap. 5, Sec. 1, Art. 3). Uruguay has taken that action in its Regulation on Water Quality (Decree No. 253/79) and in relation to the Orion (Botnia) mill in the conditions stipulated in the authorization issued by MVOTMA. In Argentina, the Entre Ríos Province, which borders the river opposite the plant, has regulated industrial discharges in a decree that also recognizes the binding effect of the CARU Digest (Regulatory Decree No. 5837, Government of Entre Ríos, 26 December 1991, and Regulatory Decree No. 5394, Government of Entre Ríos, 7 April 1997).

200. The Court considers it appropriate to now address the question of the rules by which any allegations of breach are to be measured and, more specifically, by which the existence of “harmful effects” is to be determined. It is the view of the Court that these rules are to be found in the 1975 Statute, in the co-ordinated position of the Parties established through CARU (as the introductory phrases to Article 41 and Article 56 of the Statute contemplate) and in the regulations adopted by each Party within the limits prescribed by the 1975 Statute (as paragraphs (a), (b) and (c) of Article 41 contemplate).

201. The functions of CARU under Article 56 (a) include making rules governing the prevention of pollution and the conservation and preservation of living resources. In the exercise of its rule-making power, the Commission adopted in 1984 the Digest on the uses of the waters of the River Uruguay and has amended it since. In 1990, when Section E3 of the Digest was adopted, the Parties recognized that it was drawn up under Article 7 (f) of the 1961 Treaty and Articles 35, 36, 41 to 45 and 56 (a) (4) of the 1975 Statute. As stated in the Digest, the “basic purposes” of Section E3 of the Digest are to be as follows:

“(a) to protect and preserve the water and its ecological balance;
(b) to ensure any legitimate use of the water considering long term needs and particularly human consumption needs;
(c) to prevent all new forms of pollution and to achieve its reduction in case the standard values adopted for the different legitimate uses of the River’s water are exceeded;
(d) to promote scientific research on pollution.” (Title I, Chap. 2, Sec. 1, Art. 1.)

202. The standards laid down in the Digest are not, however, exhaustive. As pointed out earlier, they are to be complemented by the rules and measures to be adopted by each of the Parties within their domestic laws.

The Court will apply, in addition to the 1975 Statute, these two sets of rules to determine whether the obligations undertaken by the Parties have been breached in terms of the discharge of effluent by the mill as well as in respect of the impact of those discharges on the quality of the waters of the river, on its ecological balance and on its biodiversity.

(a) Environmental Impact Assessment

203. The Court will now turn to the relationship between the need for an environmental impact assessment, where the planned activity is liable to cause harm to a shared resource and transboundary harm, and the obligations of the Parties under Article 41 (a) and (b) of the 1975 Statute. The Parties agree on the necessity of conducting an environmental impact assessment. Argentina maintains that the obligations under the 1975 Statute viewed together impose an obligation to conduct an environmental impact assessment prior to authorizing Botnia to construct the plant. Uruguay also accepts that it is under such an obligation. The Parties disagree, however, with regard to the scope and content of the environmental impact assessment that Uruguay should have carried out with respect to the Orion (Botnia) mill project. Argentina maintains in the first place that Uruguay failed to ensure that “full environmental assessments [had been] produced, prior to its decision to authorize the construction . . .”; and in the second place that “Uruguay’s decisions [were] . . . based on unsatisfactory environmental assessments”, in particular because Uruguay failed to take account of all potential impacts from the mill, even though international law and practice require it, and refers in this context to the 1991 Convention on Environmental Impact Assessment in a Transboundary Context of the United Nations Economic Commission for Europe (hereinafter the “Espoo Convention”) (UNTS, Vol. 1989, p. 309), and the 1987 Goals and Principles of Environmental Impact Assessment of the United Nations Environment Programme (hereinafter the “UNEP Goals and Principles”) (UNEP/WG.152/4 Annex (1987), document adopted by UNEP Governing Council at its 14th Session (Dec. 14/25 (1987)). Uruguay accepts that, in accordance with international practice, an environmental impact assessment of the Orion (Botnia) mill was necessary, but argues that international law does not impose any conditions upon the content of such an assessment, the preparation of which being a national, not international, procedure, at least where the project in question is not one common to several States. According to Uruguay, the only requirements international law imposes on it are that there must be assessments of the project’s potential harmful transboundary effects on people, property and the environment of other States, as required by State practice and the International Law Commission 2001 draft Articles on Prevention of Transboundary Harm from Hazardous Activities, without there being any need to assess remote or purely speculative risks.

204. It is the opinion of the Court that in order for the Parties properly to comply with their obligations under Article 41 (a) and (b) of the 1975 Statute, they must, for the purposes of protecting and preserving the aquatic environment with respect to activities which may be liable to cause transboundary harm, carry out an environmental impact assessment. As the Court has observed in the case concerning the Dispute Regarding Navigational and Related Rights,

“there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used - or some of them - a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law” (Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, para. 64).

In this sense, the obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.

205. The Court observes that neither the 1975 Statute nor general international law specify the scope and content of an environmental impact assessment. It points out moreover that Argentina and Uruguay are not parties to the Espoo Convention. Finally, the Court notes that the other instrument to which Argentina refers in support of its arguments, namely, the UNEP Goals and Principles, is not binding on the Parties, but, as guidelines issued by an international technical body, has to be taken into account by each Party in accordance with Article 41 (a) in adopting measures within its domestic regulatory framework. Moreover, this instrument provides only that the “environmental effects in an EIA should be assessed with a degree of detail commensurate with their likely environmental significance” (Principle 5) without giving any indication of minimum core components of the assessment. Consequently, it is the view of the Court that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.

206. The Court has already considered the role of the environmental impact assessment in the context of the procedural obligations of the Parties under the 1975 Statute (paragraphs 119 and 120). It will now deal with the specific points in dispute with regard to the role of this type of assessment in the fulfilment of the substantive obligations of the Parties, that is to say, first, whether such an assessment should have, as a matter of method, necessarily considered possible alternative sites, taking into account the receiving capacity of the river in the area where the plant was to be built and, secondly, whether the populations likely to be affected, in this case both the Uruguayan and Argentine riparian populations, should have, or have in fact, been consulted in the context of the environmental impact assessment.

(i) The siting of the Orion (Botnia) mill at Fray Bentos

207. According to Argentina, one reason why Uruguay’s environmental impact assessment is inadequate is that it contains no analysis of alternatives for the choice of the mill site, whereas the study of alternative sites is required under international law (UNEP Goals and Principles, Espoo Convention, IFC Operational Policy 4.01). Argentina contends that the chosen site is particularly sensitive from an ecological point of view and unconducive to the dispersion of pollutants “[b]ecause of the nature of the waters which will receive the pollution, the propensity of the site to sedimentation and eutrophication, the phenomenon of reverse flow and the proximity of the largest settlement on the River Uruguay”.

208. Uruguay counters that the Fray Bentos site was initially chosen because of the particularly large volume of water in the river at that location, which would serve to promote effluent dilution. Uruguay adds that the site is moreover easily accessible for river navigation, which facilitates delivery of raw materials, and local manpower is available there. Uruguay considers that, if there is an obligation to consider alternative sites, the instruments invoked for that purpose by Argentina do not require alternative locations to be considered as part of an environmental impact assessment unless it is necessary in the circumstances to do so. Finally, Uruguay affirms that in any case it did so and that the suitability of the Orion (Botnia) site was comprehensively assessed.

209. The Court will now consider, first, whether Uruguay failed to exercise due diligence in conducting the environmental impact assessment, particularly with respect to the choice of the location of the plant and, secondly, whether the particular location chosen for the siting of the plant, in this case Fray Bentos, was unsuitable for the construction of a plant discharging industrial effluent of this nature and on this scale, or could have a harmful impact on the river.

210. Regarding the first point, the Court has already indicated that the Espoo Convention is not applicable to the present case (see paragraph 205 above); while with respect to the UNEP Goals and Principles to which Argentina has referred, whose legal character has been described in paragraph 205 above, the Court recalls that Principle 4 (c) simply provides that an environmental impact assessment should include, at a minimum, “[a] description of practical alternatives, as appropriate”. It is also to be recalled that Uruguay has repeatedly indicated that the suitability of the Fray Bentos location was comprehensively assessed and that other possible sites were considered. The Court further notes that the IFC’s Final Cumulative Impact Study of September 2006 (hereinafter “CIS”) shows that in 2003 Botnia evaluated four locations in total at La Paloma, at Paso de los Toros, at Nueva Palmira, and at Fray Bentos, before choosing Fray Bentos. The evaluations concluded that the limited amount of fresh water in La Paloma and its importance as a habitat for birds rendered it unsuitable, while for Nueva Palmira its consideration was discouraged by its proximity to residential, recreational, and culturally important areas, and with respect to Paso de los Toros insufficient flow of water during the dry season and potential conflict with competing water uses, as well as a lack of infrastructure, led to its exclusion. Consequently, the Court is not convinced by Argentina’s argument that an assessment of possible sites was not carried out prior to the determination of the final site.

211. Regarding the second point, the Court cannot fail to note that any decision on the actual location of such a plant along the River Uruguay should take into account the capacity of the waters of the river to receive, dilute and disperse discharges of effluent from a plant of this nature and scale.

212. The Court notes, with regard to the receiving capacity of the river at the location of the mill, that the Parties disagree on the geomorphological and hydrodynamic characteristics of the river in the relevant area, particularly as they relate to river flow, and how the flow of the river, including its direction and its velocity, in turn determines the dispersal and dilution of pollutants. The differing views put forward by the Parties with regard to the river flow may be due to the different modelling systems which each has employed to analyse the hydrodynamic features of the River Uruguay at the Fray Bentos location. Argentina implemented a three-dimensional modelling that measured speed and direction at ten different depths of the river and used a sonar - an Acoustic Doppler Current Profiler (hereafter “ADCP”) - to record water flow velocities for a range of depths for about a year. The three-dimensional system generated a large number of data later introduced in a numerical hydrodynamic model. On the other hand, Botnia based its environmental impact assessment on a bi-dimensional modelling - the RMA2. The EcoMetrix CIS implemented both three-dimensional and bi-dimensional models. However, it is not mentioned whether an ADCP sonar was used at different depths.

213. The Court sees no need to go into a detailed examination of the scientific and technical validity of the different kinds of modelling, calibration and validation undertaken by the Parties to characterize the rate and direction of flow of the waters of the river in the relevant area. The Court notes however that both Parties agree that reverse flows occur frequently and that phenomena of low flow and stagnation may be observed in the concerned area, but that they disagree on the implications of this for the discharges from the Orion (Botnia) mill into this area of the river.

214. The Court considers that in establishing its water quality standards in accordance with Articles 36 and 56 of the 1975 Statute, CARU must have taken into account the receiving capacity and sensitivity of the waters of the river, including in the areas of the river adjacent to Fray Bentos. Consequently, in so far as it is not established that the discharges of effluent of the Orion (Botnia) mill have exceeded the limits set by those standards, in terms of the level of concentrations, the Court finds itself unable to conclude that Uruguay has violated its obligations under the 1975 Statute. Moreover, neither of the Parties has argued before the Court that the water quality standards established by CARU have not adequately taken into consideration the geomorphological and hydrological characteristics of the river and the capacity of its waters to disperse and dilute different types of discharges. The Court is of the opinion that, should such inadequacy be detected, particularly with respect to certain areas of the river such as at Fray Bentos, the Parties should initiate a review of the water quality standards set by CARU and ensure that such standards clearly reflect the characteristics of the river and are capable of protecting its waters and its ecosystem.

(ii) Consultation of the affected populations

215. The Parties disagree on the extent to which the populations likely to be affected by the construction of the Orion (Botnia) mill, particularly on the Argentine side of the river, were consulted in the course of the environmental impact assessment. While both Parties agree that consultation of the affected populations should form part of an environmental impact assessment, Argentina asserts that international law imposes specific obligations on States in this regard. In support of this argument, Argentina points to Articles 2.6 and 3.8 of the Espoo Convention, Article 13 of the 2001 International Law Commission draft Articles on Prevention of Transboundary Harm from Hazardous Activities, and Principles 7 and 8 of the UNEP Goals and Principles. Uruguay considers that the provisions invoked by Argentina cannot serve as a legal basis for an obligation to consult the affected populations and adds that in any event the affected populations had indeed been consulted.

216. The Court is of the view that no legal obligation to consult the affected populations arises for the Parties from the instruments invoked by Argentina.

217. Regarding the facts, the Court notes that both before and after the granting of the initial environmental authorization, Uruguay did undertake activities aimed at consulting the affected populations, both on the Argentine and the Uruguayan sides of the river. These activities included meetings on 2 December 2003 in Río Negro, and on 26 May 2004 in Fray Bentos, with participation of Argentine non-governmental organizations. In addition, on 21 December 2004, a public hearing was convened in Fray Bentos which, according to Uruguay, addressed among other subjects, the

“handling of chemical products in the plant and in the port; the appearance of acid rain, dioxins, furans and other polychlorates of high toxicity that could affect the environment; compliance with the Stockholm Convention; atmospheric emissions of the plant; electromagnetic and electrostatic emissions; [and] liquid discharges into the river”.

Inhabitants of Fray Bentos and nearby regions of Uruguay and Argentina participated in the meeting and submitted 138 documents containing questions or concerns.

218. Further, the Court notes that between June and November 2005 more than 80 interviews were conducted by the Consensus Building Institute, a non-profit organization specializing in facilitated dialogues, mediation, and negotiation, contracted by the IFC. Such interviews were conducted inter alia in Fray Bentos, Gualeguaychú, Montevideo, and Buenos Aires, with interviewees including civil society groups, non-governmental organizations, business associations, public officials, tourism operators, local business owners, fishermen, farmers and plantation owners on both sides of the river. In December 2005, the draft CIS and the report prepared by the Consensus Building Institute were released, and the IFC opened a period of consultation to receive additional feedback from stakeholders in Argentina and Uruguay.

219. In the light of the above, the Court finds that consultation by Uruguay of the affected populations did indeed take place.

(b) Question of the production technology used in the Orion (Botnia) mill

220. Argentina maintains that Uruguay has failed to take all measures to prevent pollution by not requiring the mill to employ the “best available techniques”, even though this is required under Article 5 (d) of the POPs Convention, the provisions of which are incorporated by virtue of the “referral clause” in Article 41 (a) of the 1975 Statute. According to Argentina, the experts’ reports it cites establish that the mill does not use best available techniques and that its performance is not up to international standards, in the light of the various techniques available for producing pulp. Uruguay contests these claims. Relying on the CIS, the second Hatfield report and the audit conducted by AMEC at the IFC’s request, Uruguay asserts that the Orion (Botnia) mill is, by virtue of the technology employed there, one of the best pulp mills in the world, applying best available techniques and complying with European Union standards, among others, in the area.

221. Argentina, however, specifically criticizes the absence of any “tertiary treatment of effluent” (i.e., a third round of processing production waste before discharge into the natural environment), which is necessary to reduce the quantity of nutrients, including phosphorus, since the effluent is discharged into a highly sensitive environment. The mill also lacks, according to Argentina, an empty emergency basin, designed to contain effluent spills. Answering a question asked by a judge, Argentina considers that a tertiary treatment would be possible, but that Uruguay failed to conduct an adequate assessment of tertiary treatment options for the Orion (Botnia) mill.

222. Uruguay observes that “the experts did not consider it necessary to equip the mill with a tertiary treatment phase”. Answering the same question, Uruguay argued that, though feasible, the addition of a tertiary treatment facility would not be environmentally advantageous overall, as it would significantly increase the energy consumption of the plant, its carbon emissions, together with sludge generation and chemical use. Uruguay has consistently maintained that the bleaching technology used is acceptable, that the emergency basins in place are adequate, that the mill’s production of synthetic chemical compounds meets technological requirements and that the potential risk from this production was indeed assessed.

223. To begin with, the Court observes that the obligation to prevent pollution and protect and preserve the aquatic environment of the River Uruguay, laid down in Article 41 (a), and the exercise of due diligence implied in it, entail a careful consideration of the technology to be used by the industrial plant to be established, particularly in a sector such as pulp manufacturing, which often involves the use or production of substances which have an impact on the environment. This is all the more important in view of the fact that Article 41 (a) provides that the regulatory framework to be adopted by the Parties has to be in keeping with the guidelines and recommendations of international technical bodies.

224. The Court notes that the Orion (Botnia) mill uses the bleached Kraft pulping process. According to the December 2001 Integrated Pollution Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper Industry of the European Commission (hereinafter “IPPC-BAT”), which the Parties referred to as the industry standard in this sector, the Kraft process already accounted at that time for about 80 per cent of world’s pulp production and is therefore the most applied production method of chemical pulping processes. The plant employs an ECF-light (Elemental-chlorine-free) bleaching process and a primary and secondary wastewater treatment involving activated sludge treatment.

225. The Court finds that, from the point of view of the technology employed, and based on the documents submitted to it by the Parties, particularly the IPPC-BAT, there is no evidence to support the claim of Argentina that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges of effluent for each tonne of pulp produced. This finding is supported by the fact that, as shown below, no clear evidence has been presented by Argentina establishing that the Orion (Botnia) mill is not in compliance with the 1975 Statute, the CARU Digest and applicable regulations of the Parties in terms of the concentration of effluents per litre of wastewater discharged from the plant and the absolute amount of effluents that can be discharged in a day.

226. The Court recalls that Uruguay has submitted extensive data regarding the monitoring of effluent from the Orion (Botnia) mill, as contained in the various reports by EcoMetrix and DINAMA (EcoMetrix, Independent Performance Monitoring as required by the IFC Phase 2: Six Month Environmental Performance Review (July 2008); EcoMetrix, Independent Performance Monitoring as required by the IFC, Phase 3: Environmental Performance Review (2008 Monitoring Year) (hereinafter “EcoMetrix Third Monitoring Report”); DINAMA, Performance Report for the First Year of Operation of the Botnia Plant and the Environmental Quality of the Area of Influence, May 2009; DINAMA, Six Month Report on the Botnia Emission Control and Environmental Performance Plan), and that Argentina expressed the view, in this regard, that Uruguay had on this matter, much greater, if not exclusive, access to the factual evidence. However, the Court notes that Argentina has itself generated much factual information and that the materials which Uruguay produced have been available to Argentina at various stages of the proceedings or have been available in the public domain. Therefore the Court does not consider that Argentina has been at a disadvantage with regard to the production of evidence relating to the discharges of effluent of the mill.

227. To determine whether the concentrations of pollutants discharged by the Orion (Botnia) mill are within the regulatory limits, the Court will have to assess them against the effluent discharge limits - both in terms of the concentration of effluents in each litre of wastewater discharged and the absolute amount of effluents that can be discharged in a day - prescribed by the applicable regulatory standards of the Parties, as characterized by the Court in paragraph 200 above, and the permits issued for the plant by the Uruguayan authorities, since the Digest only sets general limits on “hydrocarbons”, “sedimentable solids”, and “oils and greases”, but does not establish specific ones for the substances in contention between the Parties. Argentina did not allege any non-compliance of the Orion (Botnia) mill with CARU’s effluent standards (CARU Digest, Sec. E3 (1984, as amended)).

228. Taking into account the data collected after the start-up of the mill as contained in the various reports by DINAMA and EcoMetrix, it does not appear that the discharges from the Orion (Botnia) mill have exceeded the limits set by the effluent standards prescribed by the relevant Uruguayan regulation as characterized by the Court in paragraph 200 above, or the initial environmental authorization issued by MVOTMA (MVOTMA, Initial Environmental Authorization for the Botnia Plant (14 February 2005)), except for a few instances in which the concentrations have exceeded the limits. The only parameters for which a recorded measurement exceeded the standards set by Decree No. 253/79 or the initial environmental authorization by MVOTMA are: nitrogen, nitrates, and AOX (Adsorbable Organic Halogens). In those cases, measurements taken on one day exceeded the threshold. However, the initial environmental authorization of 14 February 2005 specifically allows yearly averaging for the parameters. The most notable of these cases in which the limits were exceeded is the one relating to AOX, which is the parameter used internationally to monitor pulp mill effluent, sometimes including persistent organic pollutants (POPs). According to the IPPC-BAT reference document submitted by the Parties, and considered by them as the industry standard in this sector, “the environmental control authorities in many countries have set severe restrictions on the discharges of chlorinated organics measured as AOX into the aquatic environment”. Concentrations of AOX reached at one point on 9 January 2008, after the mill began operations, as high a level as 13 mg/L, whereas the maximum limit used in the environmental impact assessment and subsequently prescribed by MVOTMA was 6 mg/L. However, in the absence of convincing evidence that this is not an isolated episode but rather a more enduring problem, the Court is not in a position to conclude that Uruguay has breached the provisions of the 1975 Statute.

(c) Impact of the discharges on the quality of the waters of the river

229. As pointed out earlier (see paragraph 165), the Parties have over the last three years presented to the Court a vast amount of factual and scientific material containing data and analysis of the baseline levels of contaminants already present in the river prior to the commissioning of the plant and the results of measurements of its water and air emissions after the plant started its production activities and, in some cases, until mid-2009.

230. Regarding the baseline data, the studies and reports submitted by the Parties contained data and analysis relating, inter alia, to water quality, air quality, phytoplankton and zooplankton of the river, health indicators and biomarkers of pollution in fish from the river, monitoring of fish fauna in the area around the Orion (Botnia) mill, fish community and species diversity in the river, concentrations of resin acids, chlorinated phenols and plant sterols in fish from the river, survey of species belonging to the genus Tillandsia, the Orion (Botnia) mill pre-start-up audit, and analysis of mercury and lead in fish muscle.

231. Argentina contends that Uruguay’s baseline data were both inadequate and incomplete in many aspects. Uruguay rejects this allegation, and argues that Argentina has actually relied on Uruguay’s baseline data to give its own assessment of water quality. According to Uruguay, contrary to Argentina’s assertions, collection of baseline data by Uruguay started in August 2006, when DINAMA started to conduct for a period of 15 months pre-operational water quality monitoring prior to the commissioning of the plant in November 2007, which served to complement almost 15 years of more general monitoring that had been carried out within CARU under the PROCON programme (River Uruguay Water Quality and Pollution Control Programme, from the Spanish acronym for “Programa de Calidad de Aguas y Control de la Contaminación del Río Uruguay”). Argentina did not challenge counsel for Uruguay’s statement during the oral proceedings that it used Uruguay’s baseline data for the assessment of water quality.

232. The data presented by the Parties on the post-operation monitoring of the actual performance of the plant in terms of the impact of its emissions on the river includes data obtained through different testing programmes conducted, inter alia, by an Argentine scientific team from two national universities, contracted by the National Secretariat of Environment and Sustainable Development of Argentina (ten sites), the OSE (Uruguay’s State Agency for Sanitary Works, from the Spanish acronym for “Obras Sanitarias del Estado”), DINAMA, independently of Botnia (16 sites), and Botnia, reporting to DINAMA and the IFC (four sites; and testing the effluent).

233. The monitoring sites maintained by Argentina are located on the Argentine side of the river; with the most upstream position located 10 km from the plant and the furthest downstream one at about 16 km from the plant. Nevertheless, three of the sites (U0, U2 and U3) are near the plant; while another three are in Ñandubaysal Bay and Inés Lagoon, the data from which, according to Argentina’s counsel, “enabled the scientists to clearly set the bay apart, as it acts as an ecosystem that is relatively detached from the Uruguay river” (Scientific and Technical Report, Chap. 3, appendix: “Background Biogeochemical Studies”, para. 4.1.2; see also ibid, para. 4.3.1.2).

234. The monitoring sites maintained by Uruguay (DINAMA) and by Botnia are located on the Uruguayan side. The OSE monitoring point is located at the drinking water supply intake pipe for Fray Bentos, at or near DINAMA station 11.

235. Argentina’s team gathered data from November 2007 until April 2009 with many of the results being obtained from October 2008. Uruguay, through DINAMA, has been carrying out its monitoring of the site since March 2006. Its most recent data cover the period up to June 2009. The OSE, in terms of its overall responsibility for Uruguayan water quality, has been gathering relevant data which has been used in the periodic reports on the operation of the plant.

236. The Court also has before it interpretations of the data provided by experts appointed by the Parties, and provided by the Parties themselves and their counsel. However, in assessing the probative value of the evidence placed before it, the Court will principally weigh and evaluate the data, rather than the conflicting interpretations given to it by the Parties or their experts and consultants, in order to determine whether Uruguay breached its obligations under Articles 36 and 41 of the 1975 Statute in authorizing the construction and operation of the Orion (Botnia) mill.

237. The particular parameters and substances that are subject to controversy between the Parties in terms of the impact of the discharges of effluent from the Orion (Botnia) mill on the quality of the waters of the river are: dissolved oxygen; total phosphorus (and the related matter of eutrophication due to phosphate); phenolic substances; nonylphenols and nonylphenolethoxylates; and dioxins and furans. The Court now turns to the assessment of the evidence presented to it by the Parties with respect to these parameters and substances.

(i) Dissolved oxygen

238. Argentina raised for the first time during the oral proceedings the alleged negative impact of the Orion (Botnia) mill on dissolved oxygen in the river referring to data contained in the report of the Uruguayan OSE. According to Argentina, since dissolved oxygen is environmentally beneficial and there is a CARU standard which sets a minimum level of dissolved oxygen for the river waters (5.6 mg/L), the introduction by the Orion (Botnia) mill into the aquatic environment of substances or energy which caused the dissolved oxygen level to fall below that minimum constitutes a breach of the obligation to prevent pollution and to preserve the aquatic environment. Uruguay argues that Argentina’s figures taken from the measurements of the OSE were for “oxidabilidad”, which refers to the “demand for oxygen” and not for “oxígeno disuelto” - i.e., dissolved oxygen. Uruguay also claims that a drop in the level of demand for oxygen shows an improvement in the quality of the water, since the level of demand should be kept as low as possible.

239. The Court observes that a post-operational average value of 3.8 mg/L for dissolved oxygen would indeed, if proven, constitute a violation of CARU standards, since it is below the minimum value of 5.6 mg of dissolved oxygen per litre required according to the CARU Digest (E3, title 2, Chap. 4, Sec. 2). However, the Court finds that the allegation made by Argentina remains unproven. First, the figures on which Argentina bases itself do not correspond to the ones for dissolved oxygen that appear in the EcoMetrix Third Monitoring Report, where the samples taken between February and October 2008 were all above the CARU minimum standard for dissolved oxygen. Secondly, DINAMA’s Surface Water and Sediment Quality Data Report of July 2009 (Six Month Report: January-June) (hereinafter “DINAMA’s Water Quality Report”) (see p. 7, fig. 4.5: average of 9.4 mg/L) displays concentrations of dissolved oxygen that are well above the minimum level required under the CARU Digest. Thirdly, Argentina’s 30 June 2009 report says in its summary that the records of water quality parameters over the period were “normal for the river with typical seasonal patterns of temperature and associated dissolved oxygen”. The hundreds of measurements presented in the figures in that chapter of the “Colombo Report” support that conclusion even taking account of some slightly lower figures. Fourthly, the figures relating to dissolved oxygen contained in DINAMA’s Water Quality Report have essentially the same characteristics as those gathered by Argentina - they are above the CARU minimum and are the same upstream and downstream. Thus, the Court concludes that there appears to be no significant difference between the sets of data over time and that there is no evidence to support the contention that the reference to “oxidabilidad” in the OSE report referred to by Argentina should be interpreted to mean “dissolved oxygen”.

(ii) Phosphorus

240. There is agreement between the Parties that total phosphorus levels in the River Uruguay are high. According to Uruguay, the total amount of (natural and anthropogenic) phosphorus emitted into the river per year is approximately 19,000 tonnes, of which the Orion (Botnia) mill has a share of some 15 tonnes (in 2008) or even less, as was expected for 2009. These figures have not been disputed by Argentina during the proceedings. Uruguay contends further that no violation of the provisions of the 1975 Statute can be alleged since the high concentration cannot be clearly attributed to the Orion (Botnia) mill as the source, and since no standard is set by CARU for phosphorus. Uruguay maintains also that based on data provided by DINAMA as compared to baseline data also compiled by DINAMA, it can be demonstrated that “[t]otal phosphorus levels were generally lower post-start-up as compared to the 2005-2006 baseline” (EcoMetrix Third Monitoring Report, March 2009).

241. A major disagreement between the Parties relates to the relationship between the higher concentration of phosphorus in the waters of the river and the algal bloom of February 2009 and whether operation of the Orion (Botnia) mill has caused the eutrophication of the river. Argentina claims that the Orion (Botnia) mill is the cause of the eutrophication and higher concentration of phosphates, while Uruguay denies the attributability of these concentrations as well as the eutrophication to the operation of the plant in Fray Bentos.

242. The Court notes that CARU has not adopted a water quality standard relating to levels of total phosphorus and phosphates in the river. Similarly, Argentina has no water quality standards for total phosphorus. The Court will therefore have to use the water quality and effluent limits for total phosphorus enacted by Uruguay under its domestic legislation, as characterized by the Court in paragraph 200 above, to assess whether the concentration levels of total phosphorus have exceeded the limits laid down in the regulations of the Parties adopted in accordance with Article 41 (a) of the 1975 Statute. The water quality standard for total phosphorus under the Uruguayan Regulation is 0.025 mg/L for certain purposes such as drinking water, irrigation of crops for human consumption and water used for recreational purposes which involve direct human contact with the water (Decree No. 253/79, Regulation of Water Quality). The Uruguayan Decree also establishes a total phosphorus discharge standard of 5 mg/L (ibid., Art. 11(2)). The Orion (Botnia) mill must comply with both standards.

243. The Court finds that based on the evidence before it, the Orion (Botnia) mill has so far complied with the standard for total phosphorus in effluent discharge. In this context, the Court notes that, for 2008 according to the EcoMetrix Third Monitoring Report, the Uruguayan data recorded an average of 0.59 mg/L total phosphorus in effluent discharge from the plant. Moreover, according to the DINAMA 2009 Emissions Report, the effluent figures for November 2008 to May 2009 were between 0.053 mg/L and 0.41 mg/L (e.g., DINAMA, “Six Month Report on the Botnia Emission Control and Environmental Performance Plan November 11, 2008 to May 31, 2009” (22 July 2009) p. 5; see also pp. 25 and 26). Argentina does not contest these figures which clearly show values much below the standard established under the Uruguayan Decree.

244. The Court observes in this connection that as early as 11 February 2005 DINAMA, in its environmental impact assessment for the Orion (Botnia) mill, noted the heavy load of nutrients (phosphorus and nitrogen) in the river and stated that:

“This situation has generated the frequent proliferation of algae, in some cases with an important degree of toxicity as a result of the proliferation of cyanobacteria. These proliferations, which in recent years have shown an increase in both frequency and intensity, constitute a health risk and result in important economic losses since they interfere with some uses of water, such as recreational activities and the public supply of drinking water. To this already existing situation it must be added that, in the future, the effluent in the plant will emit a total of 200 t/a of N[itrogen] and 20 t/a of P[hosphorus], values that are the approximate equivalent of the emission of the untreated sewage of a city of 65,000 people.” (P. 20, para. 6.1.)

245. The DINAMA Report then continues as follows:

“It is also understood that it is not appropriate to authorize any waste disposal that would increase any of the parameters that present critical values, even in cases in which the increase is considered insignificant by the company. Nevertheless, considering that the parameters in which the quality of water is compromised are not specific to the effluents of this project, but rather would be affected by the waste disposal of any industrial or domestic effluent under consideration, it is understood that the waste disposal proposed in the project may be accepted, as long as there is compensation for any increase over and above the standard value for any of the critical parameters.” (Ibid., p. 21.)

246. The Court further notes that the initial environmental authorization, granted on 15 February 2005, required compliance by Botnia with those conditions, with CARU standards and with best available techniques as included in the December 2001 IPPC-BAT of the European Commission. It also required the completion of an implementation plan for mitigation and compensation measures. That plan was completed by the end of 2007 and the authorization to operate was granted on 8 November 2007. On 29 April 2008, Botnia and the OSE concluded an Agreement Regarding Treatment of the Municipal Wastewater of Fray Bentos, aimed at reducing total phosphorus and other contaminants.

247. The Court considers that the amount of total phosphorus discharge into the river that may be attributed to the Orion (Botnia) mill is insignificant in proportionate terms as compared to the overall total phosphorus in the river from other sources. Consequently, the Court concludes that the fact that the level of concentration of total phosphorus in the river exceeds the limits established in Uruguayan legislation in respect of water quality standards cannot be considered as a violation of Article 41 (a) of the 1975 Statute in view of the river’s relatively high total phosphorus content prior to the commissioning of the plant, and taking into account the action being taken by Uruguay by way of compensation.

248. The Court will now turn to the consideration of the issue of the algal bloom of 4 February 2009. Argentina claims that the algal bloom of 4 February 2009 was caused by the Orion (Botnia) mill’s emissions of nutrients into the river. To substantiate this claim Argentina points to the presence of effluent products in the blue-green algal bloom and to various satellite images showing the concentration of chlorophyll in the water. Such blooms, according to Argentina, are produced during the warm season by the explosive growth of algae, particularly cyanobacteria, responding to nutrient enrichment, mainly phosphate, among other compounds present in detergents and fertilizers.

249. Uruguay contends that the algal bloom of February 2009, and the high concentration of chlorophyll, was not caused by the Orion (Botnia) mill but could have originated far upstream and may have most likely been caused by the increase of people present in Gualeyguaychú during the yearly carnival held in that town, and the resulting increase in sewage, and not by the mill’s effluents. Uruguay maintains that Argentine data actually prove that the Orion (Botnia) mill has not added to the concentration of phosphorus in the river at any time since it began operating.

250. The Parties are in agreement on several points regarding the algal bloom of 4 February 2009, including the fact that the concentrations of nutrients in the River Uruguay have been at high levels both before and after the bloom episode, and the fact that the bloom disappeared shortly after it had begun. The Parties also appear to agree on the interdependence between algae growth, higher temperatures, low and reverse flows, and presence of high levels of nutrients such as nitrogen and phosphorus in the river. It has not, however, been established to the satisfaction of the Court that the algal bloom episode of 4 February 2009 was caused by the nutrient discharges from the Orion (Botnia) mill.

(iii) Phenolic substances

251. With regard to phenolic substances, Argentina contends that the Orion (Botnia) mill’s emission of pollutants have resulted in violations of the CARU standard for phenolic substances once the plant started operating, while, according to Argentina, pre-operational baseline data did not show that standard to have been exceeded. Uruguay on the other hand argues that there have been numerous violations of the standard, throughout the river, long before the plant went into operation. Uruguay substantiates its arguments by pointing to several studies including the EcoMetrix final Cumulative Impact Study, which had concluded that phenolic substances were found to have frequently exceeded the water quality standard of 0.001 mg/L fixed by CARU.

252. The Court also notes that Uruguayan data indicate that the water quality standard was being exceeded from long before the plant began operating. The Cumulative Impact Study prepared in September 2006 by EcoMetrix for the IFC states that phenolics were found frequently to exceed the standard, with the highest values on the Argentine side of the river. The standard is still exceeded in some of the measurements in the most recent report before the Court but most are below it (DINAMA July 2009 Water Quality Report, p. 21, para. 4.1.11.2 and App. 1, showing measurements from 0.0005 to 0.012 mg/L).

253. During the oral proceedings, counsel for Argentina claimed that the standard had not previously been exceeded and that the plant has caused the limit to be exceeded. The concentrations, he said, had increased on average by three times and the highest figure was 20 times higher. Uruguay contends that the data contained in the DINAMA 2009 Report shows that the post-operational levels of phenolic substances were lower than the baseline levels throughout the river including at the OSE water intake.

254. Based on the record, and the data presented by the Parties, the Court concludes that there is insufficient evidence to attribute the alleged increase in the level of concentrations of phenolic substances in the river to the operations of the Orion (Botnia) mill.

(iv) Presence of nonylphenols in the river environment

255. Argentina claims that the Orion (Botnia) mill emits, or has emitted, nonylphenols and thus has caused damage to, or at least has substantially put at risk, the river environment. According to Argentina, the most likely source of these emissions are surfactants (detergents), nonylphenolethoxylates used to clean the wood pulp as well as the installations of the plant itself. Argentina also contends that from 46 measurements performed in water samples the highest concentrations, in particular those exceeding the European Union relevant standards, were determined in front-downstream the mill and in the bloom sample collected on 4 February 2009, with lower levels upstream and downstream, indicating that the Orion (Botnia) mill effluent is the most probable source of these residues. In addition, according to Argentina, bottom sediments collected in front-downstream the mill showed a rapid increase of nonylphenols from September 2006 to February 2009, corroborating the increasing trend of these compounds in the River Uruguay. For Argentina, the spatial distribution of sub-lethal effects detected in rotifers (absence of spines), transplanted Asiatic clams (reduction of lipid reserves) and fish (estrogenic effects) coincided with the distribution area of nonylphenols suggesting that these compounds may be a significant stress factor.

256. Uruguay rejects Argentina’s claim relating to nonylphenols and nonylphenolethoxylates, and categorically denies the use of nonylphenols and nonylphenolethoxylates by the Orion (Botnia) mill. In particular, it provides affidavits from Botnia officials to the effect that the mill does not use and has never used nonylphenols or nonylphenolethoxylate derivatives in any of its processes for the production of pulp, including in the pulp washing and cleaning stages, and that no cleaning agents containing nonylphenols are or have been used for cleaning the plant’s equipment (Affidavit of Mr. González, 2 October 2009).

257. The Court recalls that the issue of nonylphenols was included in the record of the case before the Court only by the Report submitted by Argentina on 30 June 2009. Although testing for nonylphenols had been carried out since November 2008, Argentina has not however, in the view of the Court, adduced clear evidence which establishes a link between the nonylphenols found in the waters of the river and the Orion (Botnia) mill. Uruguay has also categorically denied before the Court the use of nonylphenolethoxylates for production or cleaning by the Orion (Botnia) mill. The Court therefore concludes that the evidence in the record does not substantiate the claims made by Argentina on this matter.

(v) Dioxins and furans

258. Argentina has alleged that while the concentration of dioxins and furans in surface sediments is generally very low, data from its studies demonstrated an increasing trend compared to data compiled before the Orion (Botnia) mill commenced operations. Argentina does not claim a violation of standards, but relies on a sample of sábalo fish tested by its monitoring team, which showed that one fish presented elevated levels of dioxins and furans which, according to Argentina, pointed to a rise in the incidence of dioxins and furans in the river after the commissioning of the Orion (Botnia) mill. Uruguay contests this claim, arguing that such elevated levels cannot be linked to the operation of the Orion (Botnia) mill, given the presence of so many other industries operating along the River Uruguay and in neighbouring Ñandubaysal Bay, and the highly migratory nature of the sábalo species which was tested. In addition, Uruguay advances that its testing of the effluent coming from the Orion (Botnia) mill demonstrate that no dioxins and furans could have been introduced into the mill effluent, as the levels detected in the effluent were not measurably higher than the baseline levels in the River Uruguay.

259. The Court considers that there is no clear evidence to link the increase in the presence of dioxins and furans in the river to the operation of the Orion (Botnia) mill.

(d) Effects on biodiversity

260. Argentina asserts that Uruguay “has failed to take all measures to protect and preserve the biological diversity of the River Uruguay and the areas affected by it”. According to Argentina, the treaty obligation “to protect and preserve the aquatic environment” comprises an obligation to protect the biological diversity including “habitats as well as species of flora and fauna”. By virtue of the “referral clause” in Article 41 (a), Argentina argues that the 1975 Statute requires Uruguay, in respect of activities undertaken in the river and areas affected by it, to comply with the obligations deriving from the CITES Convention, the Biodiversity Convention and the Ramsar Convention. Argentina maintains that through its monitoring programme abnormal effects were detected in aquatic organisms - such as malformation of rotifers and loss of fat by clams - and the biomagnification of persistent pollutants such as dioxins and furans was detected in detritus feeding fish (such as the sábalo fish). Argentina also contends that the operation of the mill poses a threat, under conditions of reverse flow, to the Esteros de Farrapos site, situated “in the lower section of the River . . . downstream from the Salto Grande dam and on the frontier with Argentina”, a few kilometres upstream from the Orion (Botnia) mill.

261. Uruguay states that Argentina has failed to demonstrate any breach by Uruguay of the Biodiversity Convention, while the Ramsar Convention has no bearing in the present case because Esteros de Farrapos was not included in the list of Ramsar sites whose ecological character is threatened. With regard to the possibility of the effluent plume from the mill reaching Esteros de Farrapos, Uruguay in the oral proceedings acknowledged that under certain conditions that might occur. However, Uruguay added that it would be expected that the dilution of the effluent from the mill of 1:1000 would render the effluent quite harmless and below any concentration capable of constituting pollution. Uruguay contends that Argentina’s claims regarding the harmful effects on fish and rotifers as a result of the effluents from the Orion (Botnia) mill are not credible. It points out that a recent comprehensive report of DINAMA on ichthyofauna concludes that compared to 2008 and 2009 there has been no change in species biodiversity. Uruguay adds that the July 2009 report of DINAMA, with results of its February 2009 monitoring of the sediments in the river where some fish species feed, stated that “the quality of the sediments at the bottom of the Uruguay River has not been altered as a consequence of the industrial activity of the Botnia plant”.

262. The Court is of the opinion that as part of their obligation to preserve the aquatic environment, the Parties have a duty to protect the fauna and flora of the river. The rules and measures which they have to adopt under Article 41 should also reflect their international undertakings in respect of biodiversity and habitat protection, in addition to the other standards on water quality and discharges of effluent. The Court has not, however, found sufficient evidence to conclude that Uruguay breached its obligation to preserve the aquatic environment including the protection of its fauna and flora. The record rather shows that a clear relationship has not been established between the discharges from the Orion (Botnia) mill and the malformations of rotifers, or the dioxin found in the sábalo fish or the loss of fat by clams reported in the findings of the Argentine River Uruguay Environmental Surveillance (URES) programme.

(e) Air pollution

263. Argentina claims that the Orion (Botnia) mill has caused air, noise and visual pollution which negatively impact on “the aquatic environment” in violation of Article 41 of the 1975 Statute. Argentina also argues that the 1975 Statute was concluded not only to protect the quality of the waters, but also, more generally, the “régime” of the river and “the areas affected by it, i.e., all the factors that affect, and are affected by the ecosystem of the river as a whole”. Uruguay contends that the Court has no jurisdiction over those matters and that, in any event, the claims are not established on the merits.

264. With respect to noise and visual pollution, the Court has already concluded in paragraph 52 that it has no jurisdiction on such matters under the 1975 Statute. As regards air pollution, the Court is of the view that if emissions from the plant’s stacks have deposited into the aquatic environment substances with harmful effects, such indirect pollution of the river would fall under the provisions of the 1975 Statute. Uruguay appears to agree with this conclusion. Nevertheless, in view of the findings of the Court with respect to water quality, it is the opinion of the Court that the record does not show any clear evidence that substances with harmful effects have been introduced into the aquatic environment of the river through the emissions of the Orion (Botnia) mill into the air.

(f) Conclusions on Article 41

265. It follows from the above that there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or caused harm to living resources or to the quality of the water or the ecological balance of the river since it started its operations in November 2007. Consequently, on the basis of the evidence submitted to it, the Court concludes that Uruguay has not breached its obligations under Article 41.

(g) Continuing obligations: monitoring

266. The Court is of the opinion that both Parties have the obligation to enable CARU, as the joint machinery created by the 1975 Statute, to exercise on a continuous basis the powers conferred on it by the 1975 Statute, including its function of monitoring the quality of the waters of the river and of assessing the impact of the operation of the Orion (Botnia) mill on the aquatic environment. Uruguay, for its part, has the obligation to continue monitoring the operation of the plant in accordance with Article 41 of the Statute and to ensure compliance by Botnia with Uruguayan domestic regulations as well as the standards set by CARU. The Parties have a legal obligation under the 1975 Statute to continue their co-operation through CARU and to enable it to devise the necessary means to promote the equitable utilization of the river, while protecting its environment.

V. THE CLAIMS MADE BY THE PARTIES IN THEIR FINAL SUBMISSIONS

267. Having concluded that Uruguay breached its procedural obligations under the 1975 Statute (see paragraphs 111, 122, 131, 149, 157 and 158 above), it is for the Court to draw the conclusions following from these internationally wrongful acts giving rise to Uruguay’s international responsibility and to determine what that responsibility entails.

268. Argentina first requests the Court to find that Uruguay has violated the procedural obligations incumbent on it under the 1975 Statute and has thereby engaged its international responsibility. Argentina further requests the Court to order that Uruguay immediately cease these internationally wrongful acts.

269. The Court considers that its finding of wrongful conduct by Uruguay in respect of its procedural obligations per se constitutes a measure of satisfaction for Argentina. As Uruguay’s breaches of the procedural obligations occurred in the past and have come to an end, there is no cause to order their cessation.

270. Argentina nevertheless argues that a finding of wrongfulness would be insufficient as reparation, even if the Court were to find that Uruguay has not breached any substantive obligation under the 1975 Statute but only some of its procedural obligations. Argentina maintains that the procedural obligations and substantive obligations laid down in the 1975 Statute are closely related and cannot be severed from one another for purposes of reparation, since undesirable effects of breaches of the former persist even after the breaches have ceased. Accordingly, Argentina contends that Uruguay is under an obligation to “re-establish on the ground and in legal terms the situation that existed before [the] internationally wrongful acts were committed”. To this end, the Orion (Botnia) mill should be dismantled. According to Argentina, restitutio in integrum is the primary form of reparation for internationally wrongful acts. Relying on Article 35 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, Argentina maintains that restitution takes precedence over all other forms of reparation except where it is “materially impossible” or involves “a burden out of all proportion to the benefit deriving from restitution instead of compensation”. It asserts that dismantling the mill is not materially impossible and would not create for the Respondent State a burden out of all proportion, since the Respondent has

“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”,

as the Court noted in its Order on Argentina’s request for the indication of provisional measures in this case (Order of 13 July 2006, I.C.J. Reports 2006, p. 125, para. 47). Argentina adds that whether or not restitution is disproportionate must be determined at the latest as of the filing of the Application instituting proceedings, since as from that time Uruguay, knowing of Argentina’s request to have the work halted and the status quo ante re-established, could not have been unaware of the risk it ran in proceeding with construction of the disputed mill. Lastly, Argentina considers Articles 42 and 43 of the 1975 Statute to be inapplicable in the present case, since they establish a régime of responsibility in the absence of any wrongful act.

271. Taking the view that the procedural obligations are distinct from the substantive obligations laid down in the 1975 Statute, and that account must be taken of the purport of the rule breached in determining the form to be taken by the obligation of reparation deriving from its violation, Uruguay maintains that restitution would not be an appropriate form of reparation if Uruguay is found responsible only for breaches of procedural obligations. Uruguay argues that the dismantling of the Orion (Botnia) mill would at any rate involve a “striking disproportion between the gravity of the consequences of the wrongful act of which it is accused and those of the remedy claimed”, and that whether or not a disproportionate burden would result from restitution must be determined as of when the Court rules, not, as Argentina claims, as of the date it was seised. Uruguay adds that the 1975 Statute constitutes a lex specialis in relation to the law of international responsibility, as Articles 42 and 43 establish compensation, not restitution, as the appropriate form of reparation for pollution of the river in contravention of the 1975 Statute.

272. The Court, not having before it a claim for reparation based on a régime of responsibility in the absence of any wrongful act, deems it unnecessary to determine whether Articles 42 and 43 of the 1975 Statute establish such a régime. But it cannot be inferred from these articles, which specifically concern instances of pollution, that their purpose or effect is to preclude all forms of reparation other than compensation for breaches of procedural obligations under the 1975 Statute.

273. The Court recalls that customary international law provides for restitution as one form of reparation for injury, restitution being the re-establishment of the situation which existed before occurrence of the wrongful act. The Court further recalls that, where restitution is materially impossible or involves a burden out of all proportion to the benefit deriving from it, reparation takes the form of compensation or satisfaction, or even both (see Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 81, para. 152; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 198, paras. 152-153; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 233, para. 460; see also Articles 34 to 37 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts).

274. Like other forms of reparation, restitution must be appropriate to the injury suffered, taking into account the nature of the wrongful act having caused it. As the Court has made clear,

“[w]hat constitutes ‘reparation in an adequate form’ clearly varies depending upon the concrete circumstances surrounding each case and the precise nature and scope of the injury, since the question has to be examined from the viewpoint of what is the ‘reparation in an adequate form’ that corresponds to the injury” (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 59, para. 119).

275. As the Court has pointed out (see paragraphs 154 to 157 above), the procedural obligations under the 1975 Statute did not entail any ensuing prohibition on Uruguay’s building of the Orion (Botnia) mill, failing consent by Argentina, after the expiration of the period for negotiation. The Court has however observed that construction of that mill began before negotiations had come to an end, in breach of the procedural obligations laid down in the 1975 Statute. Further, as the Court has found, on the evidence submitted to it, the operation of the Orion (Botnia) mill has not resulted in the breach of substantive obligations laid down in the 1975 Statute (paragraphs 180, 189 and 265 above). As Uruguay was not barred from proceeding with the construction and operation of the Orion (Botnia) mill after the expiration of the period for negotiation and as it breached no substantive obligation under the 1975 Statute, ordering the dismantling of the mill would not, in the view of the Court, constitute an appropriate remedy for the breach of procedural obligations.

276. As Uruguay has not breached substantive obligations arising under the 1975 Statute, the Court is likewise unable, for the same reasons, to uphold Argentina’s claim in respect of compensation for alleged injuries suffered in various economic sectors, specifically tourism and agriculture.

277. Argentina further requests the Court to adjudge and declare that Uruguay must “provide adequate guarantees that it will refrain in future from preventing the Statute of the River Uruguay of 1975 from being applied, in particular the consultation procedure established by Chapter II of that Treaty”.

278. The Court fails to see any special circumstances in the present case requiring the ordering of a measure such as that sought by Argentina. As the Court has recently observed:

“[W]hile the Court may order, as it has done in the past, a State responsible for internationally wrongful conduct to provide the injured State with assurances and guarantees of non-repetition, it will only do so if the circumstances so warrant, which it is for the Court to assess.
As a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed (see Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 63; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 63; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). There is thus no reason, except in special circumstances . . . to order [the provision of assurances and guarantees of non-repetition].” (Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, para. 150.)

279. Uruguay, for its part, requests the Court to confirm its right “to continue operating the Botnia plant in conformity with the provisions of the 1975 Statute”. Argentina contends that this claim should be rejected, in particular because it is a counter-claim first put forward in Uruguay’s Rejoinder and, as such, is inadmissible by virtue of Article 80 of the Rules of Court.

280. There is no need for the Court to decide the admissibility of this claim; it is sufficient to observe that Uruguay’s claim is without any practical significance, since Argentina’s claims in relation to breaches by Uruguay of its substantive obligations and to the dismantling of the Orion (Botnia) mill have been rejected.

281. Lastly, the Court points out that the 1975 Statute places the Parties under a duty to co-operate with each other, on the terms therein set out, to ensure the achievement of its object and purpose. This obligation to co-operate encompasses ongoing monitoring of an industrial facility, such as the Orion (Botnia) mill. In that regard the Court notes that the Parties have a long-standing and effective tradition of co-operation and co-ordination through CARU. By acting jointly through CARU, the Parties have established a real community of interests and rights in the management of the River Uruguay and in the protection of its environment. They have also co-ordinated their actions through the joint mechanism of CARU, in conformity with the provisions of the 1975 Statute, and found appropriate solutions to their differences within its framework without feeling the need to resort to the judicial settlement of disputes provided for in Article 60 of the Statute until the present case was brought before the Court.

282. For these reasons,

THE COURT,

(1) By thirteen votes to one,

Finds that the Eastern Republic of Uruguay has breached its procedural obligations under Articles 7 to 12 of the 1975 Statute of the River Uruguay and that the declaration by the Court of this breach constitutes appropriate satisfaction;
IN FAVOUR: Vice-President Tomka, Acting President; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Vinuesa;
AGAINST: Judge ad hoc Torres Bernárdez;

(2) By eleven votes to three,

Finds that the Eastern Republic of Uruguay has not breached its substantive obligations under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay;
IN FAVOUR: Vice-President Tomka, Acting President; Judges Koroma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Torres Bernárdez;
AGAINST: Judges Al-Khasawneh, Simma; Judge ad hoc Vinuesa;

(3) Unanimously,

Rejects all other submissions by the Parties.
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this twentieth day of April, two thousand and ten, 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) Peter TOMKA, Vice-President.

(Signed) Philippe COUVREUR, Registrar.

Judges AL-KHASAWNEH and SIMMA append a joint dissenting opinion to the Judgment of the Court; Judge KEITH appends a separate opinion to the Judgment of the Court; Judge SKOTNIKOV appends a declaration to the Judgment of the Court; Judge CANÇADO TRINDADE appends a separate opinion to the Judgment of the Court; Judge YUSUF appends a declaration to the Judgment of the Court; Judge GREENWOOD appends a separate opinion to the Judgment of the Court; Judge ad hoc TORRES BERNÁRDEZ appends a separate opinion to the Judgment of the Court; Judge ad hoc VINUESA appends a dissenting opinion to the Judgment of the Court.

(Initialled) P. T.

(Initialled) Ph. C.


Joint dissenting opinion Judges Al-Khasawneh and Simma

1. The present dispute between Argentina and Uruguay concerns a pressing issue in our time, that of the protection of the environment and human health. It is a remarkable case: 35 years ago two States concluded a comprehensive treaty, very progressive for that time, in which they aimed to regulate the management of a complex river ecosystem, including obligations to take measures to prevent the pollution of that ecosystem. They undertook specific obligations to co-operate and inform each other of everything they intended to do which might have an effect upon the shared natural resource that forms their common boundary: the River Uruguay. Thirty years later, one of the two States decides to proceed as if that treaty had never been concluded: in disregard of its procedural obligations under the 1975 Statute, Uruguay has authorized a large-scale construction precisely within this river ecosystem. The Judgment of the Court characterizes Uruguay's breach in the clearest terms, and we concur without reservation with operative paragraph 1 of the Judgment, which adjudged that there was a breach by Uruguay of its obligations to notify and to inform.

I. A missed opportunity to cope with scientific uncertainty in a state-of-the-art manner

2. While we agree with the Judgment's finding of a breach by Uruguay of its procedural obligations, we cannot endorse operative paragraph 2 of the Judgment of the Court, and have accordingly voted against it. As we will explain in the following dissent, the Court has evaluated the scientific evidence brought before it by the Parties in ways that we consider flawed methodologically: the Court has not followed the path it ought to have pursued with regard to disputed scientific facts; it has omitted to resort to the possibilities provided by its Statute and thus simply has not done what would have been necessary in order to arrive at a basis for the application of the law to the facts as scientifically certain as is possible in a judicial proceeding. Therefore, faced with the results of a deficient method of scientific fact-finding, we are not in a position to agree "that the Eastern Republic of Uruguay has not breached its substantive obligations under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay". The evidence submitted by Uruguay to establish this result has not been treated lege artis by the Court; the same is valid for the evidence submitted by Argentina in order for the Court to arrive at the opposite conclusion. Consequently, and logically, we have no other possibility than to dissent.

3. The exceptionally fact-intensive case before us is unlike most cases submitted to the Court and raises serious questions as to the role that scientific evidence can play in an international judicial institution. The traditional methods of evaluating evidence are deficient in assessing the relevance of such complex, technical and scientific facts, yet the Court has laconically explained, at paragraph 168 of its Judgment, that

"it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate".

Thus, the Court has clung to the habits it has traditionally followed for the assessment and evaluation of evidence to arrive at the finding in operative paragraph 2. It has had before it a case on international environmental law of an exemplary nature – a "textbook example", so to speak, of alleged transfrontier pollution – yet, the Court has approached it in a way that will increase doubts in the international legal community whether it, as an institution, is well-placed to tackle complex scientific questions (cf. S. Rosenne, "Fact-Finding Before the International Court of Justice", in Essays on International Law and Practice, 2007, p. 235, p. 250; A. Riddell and Plant, Evidence before the International Court of Justice, 2009, p. 353; C. M. Schofield and H. Carleton, "Technical Considerations in Law of the Sea Dispute Resolution", in A. G. Oude Elferink and D. R. Rothwell (eds.), Oceans Management in the 21st Century, 2004, p. 251, p. 252). The adjudication of disputes in which the assessment of scientific questions by experts is indispensable, as is the case here, requires an interweaving of legal process with knowledge and expertise that can only be drawn from experts properly trained to evaluate the increasingly complex nature of the facts put before the Court (cf. C. Foster, Science and the Precautionary Principle in International Courts: Expert Evidence, Burden of Proof and Finality, forthcoming, 2010, Chap. 2). For this reason, in this dissenting opinion, we will endeavour to explain why we could not follow the Court along this path.

4. The Court on its own is not in a position adequately to assess and weigh complex scientific evidence of the type presented by the Parties. To refer to only a few instances pertinent for our case, a court of justice cannot assess, without the assistance of experts, claims as to whether two or three-dimensional modelling is the best or even appropriate practice in evaluating the hydrodynamics of a river, or what role an Acoustic Doppler Current Profiler can play in such an evaluation. Nor is the Court, indeed any court save a specialized one, well-placed, without expert assistance, to consider the effects of the breakdown of nonylphenolethoxylates, the binding of sediments to phosphorus, the possible chain of causation which can lead to an algal bloom, or the implications of various substances for the health of various organisms which exist in the River Uruguay. This is surely uncontroversial: the task of a court of justice is not to give a scientific assessment of what has happened, but to evaluate the claims of parties before it and whether such claims are sufficiently well-founded so as to constitute evidence of a breach of a legal obligation.

5. In so doing, however, the Court is called upon "to assess the relevance and the weight of the evidence produced in so far as is necessary for the determination of the issues which it finds it essential to resolve" (S. Rosenne, The Law and Practice of the International Court of Justice, 1920-2005, Vol. III, 4th ed., 2006, p. 1039). Thus, it is the method pursued by the Court in this case which is problematic. The Court here has been content to hear the arguments of the Parties, ask a few token questions, and then disappear and deliberate in camera, only to emerge with terse, formalist replies as to whether there have been violations of the substantive obligation to prevent pollution embodied in Article 41 of the 1975 Statute. In several paragraphs, the Court variously states that it "sees no need" or "is not in a position" to arrive at specific conclusions (paragraphs 213, 228), that "there is no [clear] evidence to support" certain claims (paragraphs 225, 239, 259), that certain facts have "not . . . been established to the satisfaction of the Court" (paragraph 250), or that the evidence "does not substantiate the claims" (paragraph 257) that Uruguay is in breach of its obligations under the 1975 Statute. In other words, the Court has used the traditional rules on the burden of proof and obliged Argentina to substantiate claims on issues which the Court cannot, as a court of justice, fully comprehend without recourse to expert assessment. Yet, it is certainly compatible with the Court's judicial function to have recourse, when necessary, to experts: as the Court previously has stated, "the purpose of the expert opinion must be to assist the Court in giving judgment upon the issues submitted to it for decision" (Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 228; emphasis added). Although in casu the majority of our colleagues did not consider it necessary to do so, we argue strenuously that it would have been indispensable in the case at hand.

6. We are not convinced by the claim that, in a case like the present one, scientific expertise can satisfactorily be supplied, and acted upon by the Court, by experts acting as counsel on behalf of the Parties under Article 43 of the Statute. On this point, we share the concerns expressed by the Court in paragraph 168 of the Judgment. But we do not agree with the Court's passive approach to the Parties' conduct here, and there were several alternatives for the Court.

7. One route for the Court, made available to it under Article 62 of its Rules, would have been to call upon the Parties to produce evidence or explanations that it considered necessary for understanding the matters in issue, or to have them arrange for the attendance of experts under paragraph 2 of the said Article. This would have triggered Articles 64 (b) and 65 of the Rules, whereby the experts, and the evidence they gave, could have been examined by the Parties and the bench, under the control of the President. These procedural safeguards do not exist for experts who appear under Article 43 of the Statute, who speak to the Court as counsel.

8. We consider, however, that the Court had another, more compelling alternative, provided in Article 50 of its Statute: "The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion." (Emphasis added.) Article 67 of the Rules supplements Article 50 of the Statute with various modalities, chief amongst them the requirement that the parties "shall" be given the opportunity of commenting on every enquiry or expert opinion commissioned by the Court. Although, unlike the procedure described in paragraph 7 above, this procedure does not allow for the parties to cross-examine the Court-appointed experts, it nevertheless grants them a voice in assessing the opinions that such experts might produce. The Court is therefore endowed with considerable discretion, and two well-defined procedures under its Statute and Rules, to have recourse to outside sources of expertise in handling complex scientific or technical disputes. However, we consider that with regard to the present case, one of the most exceptionally fact-intensive cases the Court has been entrusted to resolve, it would have behoved the Court to have made recourse to at least one of the sources of external expertise which it is empowered to consult.

9. It is irrelevant whether such gathering of expertise in the case at hand would have had to be undertaken through the route prescribed under Article 62 of the Rules (by calling upon the Parties to produce evidence) or under Article 67 of the Rules and Article 50 of the Statute (by nominating its own experts); the point we wish to make is simply that the Court, when handling a dispute with complex scientific or technical aspects (which will become all the more common as the world will be faced with more environmental or other challenges), should more readily avail itself of the tools available to it under its constitutive instrument in order properly to assess the evidence placed before it. The flexibility in the wording of Article 50 of the Statute, for example, allows for recourse thereunder at any moment in the proceedings, which is especially noteworthy, as it means that the Article 50 procedure can be used from the very start of a dispute, during the written or oral phases, or even after the parties have appointed experts and that evidence is deemed unsatisfactory to the Court.

10. It is not exactly as though the Court has never invoked its powers under this provision. In the Corfu Channel case ((United Kingdom v. Albania), Order of 17 December 1948, I.C.J. Reports 1947-1948, pp. 124 etseq), exercising its powers under Article 50 of the Statute, the Court commissioned three naval experts to evaluate visibility off the Albanian coast in order to substantiate the United Kingdom's claim, based on a finding of fact, that Albania could have seen various mine-laying operations occurring off its coast. In Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), (Appointment of Expert, Order of 30March 1984, I.C.J. Reports 1984, p. 165), the Court, upon a joint request of the Parties, and again using its powers under Article 50 of the Statute, appointed an expert "in respect of technical matters and . . . in preparing the description of the maritime boundary and the charts . . ." (ibid, p. 166). That expert's report was annexed to the Court's later Judgment in that dispute (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, pp. 347 et seq ).

11. This reliance on experts is all the more unavoidable in cases concerned with highly complex scientific and technological facts; we are extremely far from Corfu Channel in 2010, assessing as we do the breakdown of nonylphenolethoxylates, the chain of causation for phosphorus and dioxin/furan pollution in a river ecosystem, and the possible danger of low levels of dissolved oxygen. As Shabtai Rosenne suggests, technological evolution has brought to surface the tension that inevitably exists between the legal conception of "fact" and of evidence on the one hand, and the conception of facts in the sciences, on the other (Rosenne, "Fact-Finding", op. cit., p. 238).

12. Yet, the Court has an unfortunate history of persisting, when faced with sophisticated scientific and technical evidence in support of the legal claims made by States before it, in resolving these issues purely through the application of its traditional legal techniques; and it has come under considerable criticism in this regard, particularly in very recent scholarly commentary on its working methods (cf., for instance, Rosenne, "Fact-Finding", op. cit., pp. 239-242; Riddell and Plant, op. cit., pp. 337-339; M. Benzing, Das Beweisrecht vor internationalen Gerichten und Schiedsgerichten in zwischenstaatlichen Streitigkeiten ("The Law of Evidence before International Courts and Arbitral Tribunals in Inter-State Disputes"), 2010, p. 472). In short, in a scientific case such as the present dispute, the insights to make sound legal decisions necessarily emanate from experts consulted by the Court, even though it certainly remains for the Court to discharge the exclusively judicial functions, such as the interpretation of legal terms, the legal categorization of factual issues, and the assessment of the burden of proof.

13. Quite aside from academic criticism, so long as the Court persists in resolving complex scientific disputes without recourse to outside expertise in an appropriate institutional framework such as that offered under Article 50 of the Statute, it willingly deprives itself of the ability fully to consider the facts submitted to it and loses several advantages of such recourse: the interaction with experts in their capacity of experts and not as counsel (see para. 6, supra); the advantage of giving the parties a voice in establishing the manner in which those experts would have been used, a chance for the parties to review the Court's choice of experts (and for which subject-matter experts were needed); and the chance for the parties to comment on any expert conclusions emerging from that process. It would also have given the Court the opportunity of combining the rigour of the scientific community with the requirements of the courtroom – a blend which is indispensable for the application of the international rules for the protection of the environment and for other disputes concerning scientific evidence (Rosenne, "Fact-Finding", op. cit., p. 245).

14. It would not be sufficient if the Court, in disputes with a complex scientific component, were to continue having recourse to internal "experts fantômes", as appears to have been the case, inter alia, in certain boundary or maritime delimitation cases: no less an insider than Sir Robert Jennings, a former President of the Court, has claimed that "the Court has not infrequently employed cartographers, hydrographers, geographers, linguists, and even specialised legal experts to assist in the understanding of the issue in a case before it; and has not on the whole felt any need to make this public knowledge or even to apprise the parties" (Sir R. Y. Jennings, "International Lawyers and the Progressive Development of International Law", in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski, 1996, p. 416). The Court's Registrar, Philippe Couvreur, has defined the role of experts retained by the Court for purely internal consultation as that of temporary Registry staff members, entrusted with the giving of internal scientific opinions under the oath of confidentiality demanded of full-time Registry staff. As he explains, their conclusions would never be made public (Ph. Couvreur, "Le règlement juridictionnel", in SFDI (ed.), Le processus de délimitation maritime : Étude d'un cas fictif: Colloque international de Monaco du 27 au 29 mars 2003, 2004, p. 349, p. 384). While such consultation of "invisible" experts may be pardonable if the input they provide relates to the scientific margins of a case, the situation is quite different in complex scientific disputes, as is the case here. Under circumstances such as in the present case, adopting such a practice would deprive the Court of the above-mentioned advantages of transparency, openness, procedural fairness, and the ability for the Parties to comment upon or otherwise assist the Court in understanding the evidence before it. These are concerns based not purely on abstract principle, but on the good administration of justice (C. Tams, "Article 50", in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary, 2006, p. 1109, p. 1118). Transparency and procedural fairness are important because they require the Court to assume its overall duty for facilitating the production of evidence and to reach the best representation of the essential facts in a case, in order best to resolve a dispute.

15. Other international bodies have accepted the reality of the challenges posed by scientific uncertainty in the judicial process: in Iron Rhine Railway (Belgium v. Netherlands), Arbitral Award, 24 May 2005, the Tribunal recommended that the parties establish a committee of independent experts within four months of the date of the award to determine several facts, inter alia, the costs of reactivating the Iron Rhine Railway, the costs of alternative autonomous development by the Netherlands, and the quantifiable benefits accruing to the Netherlands by reason of the reactivation (ibid, para. 235). The Tribunal there considered it more appropriate for experts to "investigate questions of considerable scientific complexity as to which measures will be sufficient to achieve compliance with the required levels of environmental protection" (ibid.). The Iron Rhine Tribunal's hybrid approach for appointing experts is thus a positive example which could serve the Court; we see no reason why it cannot be considered under Article 50 of the Statute. Moreover, in the Award of the Arbitral Tribunal of 17 September 2007 in the Matter of an Arbitration between Guyana and Suriname, the Tribunal appointed an independent hydrographic expert and directed him as to the specific points of fact he was to examine (Procedural Order No. 6 of the Tribunal, 27 November 2006; Order No. 7 of the Tribunal, 12 March 2007). The Parties were given the opportunity to comment on the report of the independent hydrographic expert before it was adopted by the Tribunal (Order No. 8 of the Tribunal, 21 May 2007). The findings of the independent hydrographic expert were relied upon by the Tribunal in addition to the expert evidence submitted by the Parties in their pleadings, and the Award has been described as "based on a sound understanding and acknowledgement of the relevant technical points in the dispute" (Riddell and Plant, op. cit., p. 356).

16. It is perhaps the World Trade Organization, however, which has most contributed to the development of a best practice of readily consulting outside sources in order better to evaluate the evidence submitted to it; in fact, it was devised as a response to the needs of the dispute resolution process in cases involving complex scientific questions (Foster, op. cit., Chap. III). Various WTO panels have heard the experts put forward by the parties, have made recourse to specialized international organizations or agencies for information, or have outright heard the views of experts appointed by the Panel (see, e.g., European Communities —Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/D S4 8/R/C AN, WT/DS26/AB/R, WT/DS48/AB/R (1998), DSR 1998:II, p. 235; European Communities – Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, WT/DS26/AB/R, WT/DS48/AB/R (1998), DSR 1998:III, p. 699; European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R (2006) (hereinafter "EC-Biotech"); Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/R, WT/DS321/AB/R (2008); United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R, WT/DS320/AB/R (2008)). The consultation of tribunal-appointed scientific experts by WTO panels may take place even where the parties have not so requested (as in United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R, WT/DS58/AB/R (1998), DSR 1998:VII, p. 2821 (hereinafter "US-Shrimp"), and even if the parties have agreed that such outside consultation is unnecessary (as occurred in EC-Biotech, Panel Report 7.16). Between three and six experts are usually appointed in a two-stage consultation process, comprising both written and oral phases. During the latter phase, parties are invited during a "Joint Meeting" to comment on the expert reports as well as the comments of the opposing party (this procedure was first used in the WTO US-Shrimp case). This second, oral phase is particularly interesting because of the opportunity it affords to the panel and the parties for explanation of the concepts, methods and principles that underlie scientific arguments, and thus to improve their overall level of understanding of the science at play in a given case. Regrettably, a similar course of action was not adopted here.

17. The present dispute has been a wasted opportunity for the Court, in its "unfettered discretion" to do so (Rosenne, Law and Practice, op. cit., p. 1333), to avail itself of the procedures in Article 50 of its Statute and Article 67 of its Rules, and establish itself as a careful, systematic court which can be entrusted with complex scientific evidence, upon which the law (or breach thereof) by a party can be established. Moreover, the decision not to employ the procedure available to it under Article 50 of the Statute has meant that the evidence has not been treated in a convincing manner to establish the verity or falsehood of the Parties' claims. Certainly, experts will be drawn into questions of legal interpretation through their involvement in the application of legal terms. The conclusions of scientific experts might be indispensable in distilling the essence of what legal concepts such as "significance" of damage, "sufficiency", "reasonable threshold" or "necessity" come to mean in a given case. For this reason, in a case concerning complex scientific evidence and where, even in the submissions of the Parties, a high degree of scientific uncertainty subsists, it would have been imperative that an expert consultation, in full public view and with the participation of the Parties, take place. Therefore, with rue, we dissent from what is otherwise a solid Judgment.

II. A missed opportunity to approach an environmental dispute in a forward-looking and prospective manner

18. To move from the issue of the Court's failure to assess scientific evidence lege artis to a closely related matter: The Court has concluded that, while it has jurisdiction to settle disputes concerning the interpretation or application of the 1975 Statute under Article 60, it "cannot uphold the interpretation of Article 9 [put forward by Argentina] according to which any construction is prohibited until the Court has given its ruling pursuant to Articles 12 and 60" (Judgment, paragraph 154). It has rejected the hypothesis that Article 12 might contain any such "no construction obligation" (ibid.) and has also determined that the Parties to the Statute have a right to implement the project once that Party's obligation to negotiate has come to an end (ibid, paragraph 155).

19. The 1975 Statute provides a dual role for the Court. Article 60 of the Statute casts the Court in its traditional role, that of interpreting and applying rights and obligations under the 1975 Statute. It is a wide-ranging role, but it remains confined to the judicial function generally exercised by the Court when it is faced with a dispute that has come before it under a compromissory clause. It typically consists in a retrospective evaluation of the case at hand and is geared towards the perspective of identifying harm to the river ecosystem that has actually occurred or is impending. This reflects the traditional approach to international legal dispute settlement as the identification of infringements of obligations incumbent upon the Parties and the reaction to such breaches in the form of fixing adequate compensation or providing for quintessentially retrospective remedies.

20. In contrast, Article 12 conceives of a distinct role for the Court: It provides that, if the Parties fail to reach an agreement on whether an envisaged project "might significantly impair navigation, the régime of the river or the quality of its waters" (Article 11), "the procedure indicated in Chapter XV shall be followed" (Article 12), i.e., the matter shall be submitted to the Court. While this seems to present merely another avenue leading to the application of Article 60, we would submit that the special procedure envisaged by Article 12 differs from that under Article 60 in so far as it modifies the function of the Court, transforming it into the primary adjudicator on technical and/or scientific matters when the Parties cannot reach agreement.

21. In our opinion, in essence, under Article 12, the Court is not relegated to the function of adjudging ex post facto whether a breach has happened and what remedies constitute appropriate reparation for a claimed breach, but instead, is co-opted by the Parties to assist them from an early stage in the planning process. The perspective of Article 12 is decisively forward-looking, as under it, the Court is to step in, before a project is realized, where there is disagreement on whether there are potentially detrimental effects to the environment. Leaving aside the question whether this amounts to a "no-construction obligation" pending the decision of the Court, the very objective of calling upon the intervention of the Court under Article 12 is thus to obtain its authoritative interpretation of what "significant impairment" means in regard to a specific project and its specific risks and repercussions to the environment of the River Uruguay. On the basis of this input, the Parties can assess within the framework of their common management of the river ecosystem, whether and to what extent the project in question should be realized. As described above, the implications of the role so described go much further than the issue whether a so-called "no-construction obligation" is founded in Article 12, but extend into the manner in which the Court sets its procedure and handles evidence.

22. For the Court, differently from the standard discharge of its responsibilities under Article 60, the procedure of Article 12 implies that it has to take a forward-looking, prospective approach, engage in a comprehensive risk assessment and embrace a preventive rather than compensatory logic when determining what this risk might entail. This logic carries with it particular cogency in the realm of environmental law. As the Court itself has proclaimed elsewhere, "in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage" (Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140).

23. The points regarding scientific expert evidence made before apply even more forcefully in regard to such a preventive perspective. Given the multiplicity of the factors involved, the long periods of time and accumulation of effects to be taken into account, the intricate questions of causality and interdependence to be considered, all these add up to a complex matrix of factual issues which can only be transformed into a sound evidentiary basis for the Court's reasoning and decision-making if, and only if, the Court makes use of external scientific and technical expert input, combined with necessary procedural guarantees. This is even more so if there exists a situation where the scientific community itself is divided and the question arises whether, and to what extent, the precautionary principle should enter the fore.

24. Article 12 is the natural seat of these considerations and concerns in the 1975 Statute. It is thus, given the time of its conclusion, a truly remarkable and highly characteristic feature of the Statute and reflects its innovative and progressive character. In its rejection of the philosophy of fait accompli, it offers a paramount example of how to entrench prospective, preventive reasoning at the institutional level in the assessment of risks from the authorization process onwards. In particular, the preventive assessment of risk is particularly needed in the crucial and ever-more important field of environmental protection. Acknowledging the often "irreversible character of damage to the environment" (see supra, para. 22) is a first important step to make. Beyond this, the Court must remain aware, when confronted with challenges of risk of environmental pollution and endangerment of ecosystems, of the inherent weaknesses and flaws of the traditional retrospective judicial process and its compensatory logic. Article 12 of the 1975 Statute clearly transcends this narrow framework. Nonetheless, the majority seems almost unanimously to have assumed that the Court is acting under Article 60 of the 1975 Statute, and has decided on that basis.

25. However, the role discharged by the Court even under Article 60, as is amply evidenced by the Judgment, has been de facto that of an "expert" or "specialized" court, exercising the functions expected of it under a dispute referred to it under Article 12. It is therefore even more regrettable that the Court has failed to grasp the implications for its function wrought by Article 12. It is our conviction that, with the device of Article 12 at hand, provided by the 1975 Statute itself, the Court could and should have engaged in a different kind of reasoning that would have been more responsive to the prospective and preventive aspects the Statute ascribes to the role of the Court. Against this background, the Court would not have had to limit its own role simply to assess ex post facto the damages that have occurred, but could have looked, in a more comprehensive manner, at the risk factors involved and the importance of the procedural obligations that the Parties have undertaken precisely to minimize that risk. In so doing, it could have also embraced a more flexible approach to the role that expert evidence could have played in the resolution of this dispute.

III. A missed opportunity to clarify the interrelation between procedural and substantive obligations

26. A final observation: in matters related to the use of shared natural resources and the possibility of transboundary harm, the most notable feature that one observes is the extreme elasticity and generality of the substantive principles involved. Permanent sovereignty over natural resources, equitable and rational utilization of these resources, the duty not to cause significant or appreciable harm, the principle of sustainable development, etc., all reflect this generality. The problem is further compounded by the fact that these principles are frequently, where there is a dispute, in a state of tension with each other. Clearly in such situations, respect for procedural obligations assumes considerable importance and comes to the forefront as being an essential indicator of whether, in a concrete case, substantive obligations were or were not breached. Thus, the conclusion whereby non-compliance with the pertinent procedural obligations has eventually had no effect on compliance with the substantive obligations is a proposition that cannot be easily accepted. For example, had there been compliance with the steps laid down in Articles 7 to 12 of the 1975 Statute, this could have led to the choice of a more suitable site for the pulp mills. Conversely, in the absence of such compliance, the situation that obtained was obviously no different from a fait accompli.

27. The Court does recognize a functional link between procedural and substantive obligations laid down by the 1975 Statute (see Judgment, paragraph 79). However, the Court does not give full weight to this interdependence, neither when assessing whether a breach of Article 41 of the 1975 Statute has occurred nor in determining the appropriate remedies for the breach of Articles 7 to 12 thereof. According to the Court, as long as compliance with substantive obligations has been assured (or at least lack of it not proved), the breach of procedural obligations would not matter very much and hence a declaration to that effect constitutes appropriate satisfaction; this is not the proper way to pay due regard to the interrelation of procedure and substance.

28. In conclusion, we regret that the Court in the present case has missed what can aptly be called a golden opportunity to demonstrate to the international community its ability, and preparedness, to approach scientifically complex disputes in a state-of-the-art manner.

(Signed) Awn Shawkat Al-KHASAWNEH.
(Signed) Bruno SIMMA.


Separate Opinion of Judge Keith

1. In this opinion

(a) I address certain aspects of the fact-finding process in which the Court engaged in reaching its conclusion that Uruguay was not in breach of its substantive obligations under the Statute (para. (2) of the dispositif); I do that in support of the Court's reasoning and conclusion.

(b) I provide my understanding of the extent of the breaches by Uruguay of its procedural obligations under the Statute (para. (1) of the dispositif); I do that to indicate that, while I agree with the Court's conclusion in the dispositif, I disagree with part of its reasoning and with one finding within that reasoning.

The fact-finding process

2. A central function of courts is to decide those disputes of facts which the court must decide as it determines whether a party before it is in breach of its legal obligations. The disputes of fact may be about technical or scientific matters, as in this case. In terms of basic principle and this Court's long-established procedure and practice, each party will have full opportunity to present documentary and oral evidence and submissions in support of its positions on the matters of fact which it sees as being in dispute.

3. In this case, in addition to the evidence presented in the two rounds of written pleadings and that presented in 2006 in the course of the two requests for provisional measures, the Parties, with the authorization of the Court, submitted further scientific and technical and other information on 30 June 2009; two weeks later they filed comments, with documents in support, on the information provided by the other Party; and they submitted further scientific and technical data during the hearings in September 2009. The initiative the Parties took to provide that new material was a commendable one: Argentina had filed its Reply less than three months after the Botnia plant began operating and understandably, at that stage, could do little more than make suggestions about the possible impact of the plant on the River Uruguay. When Uruguay came to file its Rejoinder on 29 July 2008, it was in a better position, and it provided monitoring results on the first six months of operation of the plant (pp. 231-265 and extensive annexes) but, by the time of the hearings, the plant had been operating for almost two years.

4. The Scientific and Technical Report filed by Argentina on 30 June 2009 summarized in over 400 pages the results of the research of the scientific team from the National University of La Plata and the National University of Buenos Aires. The Research Program was an interdisciplinary, multi-laboratory effort intended to characterize the natural functioning of the Uruguay river ecosystem and the impact of the Botnia mill on it. It involved a significant number of scientific and technical personnel. (The CVs of ten of the scientists are included in the report; 11 names are listed as comprising one of the groups: that monitoring the river.) The Report covered the first 18 months operation of the plant. It sets out the details of the monitoring, particularly of water quality, along a 26 km stretch of the river. That Report, with its information about the impact of the plant on the river, once it became operational, was central to Argentina's case on substantive breach. Uruguay, in its 30 June 2009 New Documents, also provided detailed reports, by DINAMA, on the first year of operation of the plant and the environmental quality of the area of influence, and by EcoMetrix in its Independent Performance Monitoring as required by the IFC, for 2008. In the course of the hearings, on 15 September 2009, Uruguay, citing Article 56 (4) of the Rules of Court and Practice Direction IX bis, submitted further documents which it said were recent and readily available. Argentina did not object to their submission. They included another five DINAMA Reports covering periods up to 30 June 2009. As appears from paragraphs 228 to 262 of the Judgment, the documents submitted in June and September are central to the conclusions the Court reaches.

5. It is not only the timeliness of the information which is critical. It is also its quantity, quality and consistency. In terms of quantity, Argentina (10), DINAMA (16) and Botnia (4) between them had 30 monitoring sites, up and downstream from the Botnia plant, measuring water quality. Botnia had another at the plant, testing the effluent. The monitoring stations extended from more than 30 kilometres upstream of the plant to 20 kilometres downstream. Three of the Argentine stations were in Nandubaysal Bay and Inés Lagoon, the data from which, according to the Argentine scientific team, provided a comparator since the Bay "acts as an ecosystem that is relatively detached from the Uruguay river" (Scientific and Technical Report of 30 June 2009, Chap. 3, appendix Background Biogeochemical Studies, para. 4.1.2; see also para. 4.3.1.2; see also sketch-map No. 2). Uruguay through DINAMA, has been carrying out its monitoring since March 2006 (Counter-Memorial Uruguay para. 7.10). The monitoring, under a plan adopted in May 2007 and amended in October 2007, based on pre-operational monitoring, and again in June 2008, based on the first six months of operations, includes, with one exception, all the substances considered in the Judgment and many others (Counter-Memorial Uruguay Vol. II, Ann. 39; Rejoinder Uruguay Vol. IV, Anns. R86, R89). The exception was nonylphenols discussed by the Court in paragraphs 255-257. While the plant is operating, DINAMA has undertaken to carry out periodic monitoring for the various substances and other matters, and every six months to carry out an inspection of environmental management and performance (Counter-Memorial Uruguay, paras. 7.20-7.27; Rejoinder Uruguay, para. 4.63). Its most recent data before the Court cover the period up to June 2009.

6. Botnia's Waterworks Treatment System Approval of 4 July 2007 requires it to report to DINAMA every two months on its effluent treatment performance (Counter-Memorial Uruguay, Vol. X, Ann. 225). The plan includes continuous monitoring available in DINAMA offices, transmitted every ten minutes and the provision of the results of sampling analysis (New Documents submitted by Uruguay, 30 June 2009, Ann. S2, Appendix IV, p. 2/33). The IFC required reviews of the environmental performance of the plant. The independent experts appointed by the IFC undertook those reviews on the basis of the data collected by OSE, DINAMA and Botnia, as well as certain independent laboratories (New Documents Submitted by Uruguay, 30 June 2009, Ann. S7, p. ES.ii). Three such reports have been prepared for the IFC and are before the Court, the first completed before the mill was commissioned to ensure compliance with the Environmental and Social Action Plan which had been established, the second following the first six months of operation, and the third on the first year of operation. The fourth and last was to be prepared following the 2009 monitoring year and the second year of operation. OSE, Uruguay's State Water Works, in terms of its overall responsibility for Uruguayan water quality, has been gathering relevant information throughout the relevant period at the Fray Bentos water intake. And CARU had gathered data from 13 points along the river from the mid-1980s until February 2006.

7. So far as the quality of the information provided by the two Parties is concerned, neither Party challenged any of the detail of the data, many thousands of items, gathered by the monitoring stations, up and down the river and at the effluent point at the plant, and recorded in the many tables included in the documents before the Court. Rather, they disagreed about how those data were to be interpreted. I return to that issue later. The accuracy of the data collected is supported as well by their consistency over time and throughout the whole stretch of river in issue. As appears from the Judgment, that consistency is in general also to be found in the data collected before and after the plant began operating, and by the Argentinian as well as the Uruguayan monitoring. Some differences do appear, for instance, as a result of temperature variations but, as the Judgment shows, they are not significant in terms of the assessment of the impact of the operation of the plant on the water quality in the river (e.g., paras. 228, 239, 240, 247 and 252).

8. The task of the Court, to repeat, is to decide disputes of fact which have to be resolved in determining whether a party to the proceeding has breached its legal obligations. The dispute in this case is about the interpretation or evaluation of the raw data, not about the quality of the data nor, for the most part, their content. Like the Court (para. 236), I see the task in this case as assessing, by reference to the raw data, the impact of the operation of the plant on the water quality. As the Judgment shows, Argentina has failed to demonstrate by reference to that wealth of information that the operation of the plant to the present time has led to changes in water quality which breach Uruguay's substantive obligations in respect of those components.

9. I do of course appreciate that the Court, under Article 50 of the Statute, has powers to set up an enquiry and to seek an expert opinion, and that it could have exercised those powers in this case. The powers are to be exercised in accordance with the processes, designed to ensure the independence and quality of the resulting reports and to protect the rights of the Parties, laid down in Articles 67 and 68 of the Rules. As is well known, the Court and its predecessor have made Orders under Article 50 in four cases:

— Two concerned the calculation of compensation (Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 99 and Corfu Channel (Assessment of Amount of Compensation) (United Kingdom v. Albania), Order of 19November 1949, I.C.J. Reports 1949, p. 237); in the second, a factor in the Court making the Order was that the respondent was not participating in that phase of the proceeding and the Court accordingly invoked Article 53 as well as Article 50.
— In the third, the Court appears to have identified as early as the end of the first round of written argument that the resolution of critical issues of fact might require the assistance of naval experts; their reports on precisely formulated naval and technical issues, ordered in the course of the oral proceedings, and including a site visit, were subject to submissions by the Parties (which had had the opportunity to suggest issues to be enquired into) and to questions from judges before the end of the proceedings (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, pp. 142-169; for the Court's use of the reports see pp. 13, 14, 16 and 20-22).
— In the fourth, the Parties in the Special Agreement submitting a maritime boundary dispute to the Court undertook to request the Chamber which was to decide the case to appoint a technical expert, nominated jointly by the Parties, to assist it in respect of technical matters and, in particular, in preparing the description of the maritime boundary and the charts referred to in the Special Agreement. The expert was to be present at the oral proceedings and to be available for such consultations with the Chamber as it might deem necessary (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Appointment of Expert, Order of 30March 1984, I.C.J. Reports 1984, p. 165).
(See also the Order appointing experts in another boundary dispute, again made at the request of both Parties, in Frontier Dispute (Burkina Faso/Republic of Mali), Nomination of Experts, Order of 9 April 1987, I.C.J. Reports 1987, p. 7, but under Article 48, not Article 50.)

10. In a number of other cases proposals by a Party to make such orders have not been accepted: Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, pp. 162-163; Oscar Chinn, Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 88, a request by one not opposed by the other; and Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment I.C.J. Reports 1985, pp. 192, 227-229, paras. 64-67). In at least two other cases, proposals from within the Court to set up an inquiry were not acted on: Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 100; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 61; and dissenting opinion of Judge Schwebel, ibid., pp. 321-323, paras. 132-134).

11. In the context of the present case, I am unable to see that the Court could have obtained any real assistance from employing those procedures of enquiry or expert opinion, a course which the Parties, moreover, did not propose. Any enquiry could not have begun to add in any significant way to the many thousands of items of data already before the Court; for one thing, some of that information was being collected and recorded years before the case was launched. And any expert opinion would have covered exactly the same issues of evaluation as were already being argued before the Court by the Parties, assisted by their experts. In the end those issues are for the Members of the Court to decide, in this case essentially on the basis of the data put before the Court by the Parties. I would stress that that responsibility of making decisions on the matters of scientific dispute arises only if the matters require decision in the course of the Court determining whether or not Argentina had made out its claim. A number of the issues debated before the Court, such as the river flow and the best ways of measuring it, did not have to be decided in the course of making that determination. For my part, I think that the resolution of those matters which the Court did have to decide, based on the raw data, is relatively straightforward.

12. I do however draw on one important general interpretation given by Argentina to the data and four of its more specific evaluations. That interpretation and those evaluations may be seen, in part at least, as declarations against interest. They were given by the Party which was obliged to establish the facts it asserted in support of its claim that its rights had been breached.

13. According to the Executive Summary of Argentina's Scientific and Technical Report provided to the Court on 30 June 2009, a report based on almost two years of continuous study of the river:

"The main outcome of this study is the detection of changes associated to the pulp mill activities that could act as an early warning framework to anticipate future major and more irreversible ecosystem damages." (Original emphasis.)

On more specific matters, Argentina in that Report states that the records of water quality parameters during the sampling campaigns were "normal for the river with typical seasonal patterns of temperature and associated dissolved oxygen concentrations" (Chap. 3, p. 2). Through its counsel, it says that the dioxin and furan levels were low in the study area, below environmental quality guidelines, with some increasing trend. In the 30 June 2009 report, it comments that "the observed sodium levels do not imply any risk" and were lower than those in the Argentine Bay; and that although the AOX levels were higher than the baseline figures reported by Uruguay, they were lower than the German standard (there being no CARU or Uruguay standard) (Chap. 3, p. 22, Figure 7, p. 23; p. 27; Figures 11 and 12, pp. 27 and 29).

14. I return to the reference to "early warning" in Argentina's report. That may be related to the ongoing obligations of Uruguay under the 1975 Statute in respect of the operation of the plant. Those obligations are both substantive and procedural, and last so long as the plant continues to operate. I conclude this part of my opinion by highlighting Uruguay's obligation to continue to monitor the operation of the plant and, as appropriate, to require remedial action. Under Botnia's authorization, DINAMA will continue to monitor at its 16 stations, on a periodic basis, the identified compounds, elements and other parameters. Under Uruguayan law and its authorization, Botnia remains under the obligation to control and to monitor emissions. Further, it has to apply for the renewal of its authorization to operate every three years. It remains subject to DINAMA's powers. The nature and reality of some of DINAMA's powers were demonstrated by its response to an operational error which occurred during maintenance work on 26 January 2009. Following an effective response at the plant, DINAMA inspected the plant the next day to check directly on the situation and the measures taken. The incident, said DINAMA, was one within the eventualities of such an industrial operation and the company had complied in all aspects with the emergency responses plan approved by DINAMA (Six Months Emissions Report July 2009, pp. 23-24). On 23 March 2009, in response to this incident, DINAMA enacted a resolution providing for additional monitoring (Annex C6 to Uruguay's Comments of 15 July 2009).

15. Uruguay's obligations, which in practice are primarily to be met through the exercise by DINAMA of its monitoring and related powers, continue as a matter of international legal obligation. That obligation has two sources — (1) its obligation under Article 41 (a) of the Statute to prevent pollution as interpreted and applied by the Court (paras. 204-205), and (2) its obligation under Article 41 (b) not to reduce in its legal system the technical requirements in force under its law and the conditions in the Botnia authorization, for preventing water pollution. CARU might well in addition, as was contemplated for instance in 2004, take up its monitoring role in support of the same purpose. Uruguay's continuing obligation is independent of that possibility.

Uruguay's breaches of its procedural obligations

16. I agree with the Court that Uruguay breached its obligation under Article 7 of the Statute to notify in proper time the plans for the two plants. I also agree that, when the negotiating period of 180 days ended on 30 January 2006, Uruguay was not barred from authorizing the completion and operation of the plants. My disagreement relates to the intermediate step in the process and to the Court's finding that the actions taken by Uruguay in respect of each plant in the course of that 180 days breached its procedural obligations.

17. I begin with the undoubted principle that both Parties were obliged to perform their treaty obligation to negotiate in good faith, as Article 26 of the Vienna Convention on the Law of Treaties declares. That obligation includes, as the International Law Commission said in its commentary to what became Article 26, an obligation to abstain from acts calculated to frustrate the object and purpose of the treaty (Yearbook of the International Law Commission, 1966, Vol. II, p. 211, para. 4). The procedures laid down in Articles 7 to12 of the Statute are, in terms of Article 1, a central part of the joint machinery necessary for the optimal and rational utilization of the river; accordingly, actions calculated to frustrate that machinery would be a breach of the duty of good faith.

18. To determine whether Uruguay did commit such a breach requires an examination both of the course of the negotiations between Argentina and Uruguay during the 180-day period and of Uruguay's actions in relation to the two mills during that period.

19. As the Court recognizes, the negotiations provided for in the Statute were in this case to take place in the GTAN. In terms of Article 11, the negotiations, undertaken with a view to reaching an agreement, are to follow a communication from the notified party specifying the aspect of the project that might be harmful, the reasons for that conclusion and the changes it proposes. The negotiations, in terms of general principle, are to be meaningful but, in terms of the particular context, they are to be undertaken against the background that, if no agreement is reached by their end, the project may continue.

20. While GTAN was set up in May 2005, it did not hold its first meeting until 3 August. It held 12 meetings in all — more than Argentina proposed at the first meeting — but was unable to reach agreement. In the course of the meetings, Uruguay produced a large number of documents in response to Argentina's requests. They included the full copy of the files relating to the environmental authorizations for both mills. The Uruguayan delegation in its report of 31 January 2006 prepared at the end of the process says that it provided all the information requested by the Argentine delegation which was available to it. As to information not available to it, Uruguay had requested each of the companies to provide that information which the companies had, according to the progress of their respective projects. The report of the Argentine delegation of 3 February 2006 reiterated that Uruguay had breached its obligations under the Statute, noted problems with the EIA, and criticized the choices of site, the planned production method, the studies of the impact of effluents, gas emissions and solid waste, the lack of preventive and mitigating measures and the mills' socio-economic impact (Memorial Argentina, para. 2.69 and Anns., Vol. IV, Ann 1).

21. Neither Party provided the Court with the minutes of the meetings beyond the first. Uruguay, in its report prepared at the end of the GTAN process, listed the 36 documents it provided to Argentina over the period of the negotiation and provided 26 of them to the Court as part of the bulky volume of annexes relating to GTAN; others, such as the various authorizations relating to the plants, appear elsewhere in the record. Argentina provided no such detail. Its slender volume of annexes relating to GTAN comprises no more than the joint communiqué under which the group was set up, the minutes of the first meeting and the (final) reports of the two delegations. While those minutes and the Argentine report do indicate, to return to the terms of Article 11, why Argentina considered harm might be caused by the plants, they do not, to turn to the other requirement of Article 11, appear to suggest changes to the projects which might meet the likely harm, apart from the proposal to have the plants moved to other sites.

22. It is against the background of those negotiations that the Uruguayan actions relating to the plants taken during the negotiating period are to be assessed. They are three in total:

ENCE

— 28 November 2005: Environmental Management Plan Approval for the construction stage — land movement.

BOTNIA

— 22 August 2005: Environmental Management Plan Approval for the construction of the concrete plant, foundation and construction of a chimney and foundation for construction works.
— 18 January 2006: Environmental Management Project Approval for the construction of the plant.
On 3 November 2005 an Initial Environmental Authorization was also given in respect of the Port at Nueva Palmira, but, as the Court rules (para. 45), that facility does not fall within the scope of this proceeding.

23. The three approvals are to be seen in context. The ENCE plant had received its initial environmental authorization on 9 October 2003 and received no other authorization. Botnia's initial authorization was on 14 February 2005, and was followed by three further authorizations before the GTAN negotiations began:

— 12 April 2005 — environmental management plan — approval of removal of
vegetation and earth movement;
— 5 July 2005 — resolution relating to a port terminal for the mill granting a riverbed
concession;
— 1 August 2005 — approval of environmental management plan dated 27 July 2005.
Following the end of the negotiating period, another seven approvals that were required were granted before the plant could begin operating:
— 22 March 2006 — land movement approval;
— 10 May 2006 — approval of construction of waste water treatment plant;
— 9 April 2007 — approval of construction of solid industrial land fills (two approvals);
— 24 September 2007 — approval of conservation area;
— 31 October 2007 — approval of environmental management plan for operations;
— 8 November 2007 — authorization to operate.

24. Did Uruguay by giving the three approvals during the negotiating period breach its obligation to negotiate in good faith? Were those actions such as to frustrate the negotiations? Did they mean that the negotiations were not meaningful? The answers to the questions depend in part, as I have already indicated, on the course of the negotiations in GTAN, and the contributions the Parties made to those negotiations, so far as they appear in the record before the Court (paras. 19 to 21 above). The answers also depend on the nature of the actions of Uruguay relating to the two projects.

25. I begin with the ENCE project. The relevant approval was for a minor aspect of the whole project. If the project was abandoned, as in fact happened, no doubt any land clearing undertaken in accordance with the authorization could be easily remedied, were that necessary. The Botnia case is not as straightforward, but again I do not see the approvals as frustrating the negotiations or causing them not to be meaningful. It is true that the foundations and emissions stack are a significant part of the plant, but much more remained to be assessed and approved or not by the Uruguayan authorities and to be done on the ground, as appears from the fact that the plant was not complete and did not begin operating until another two years had passed. The approval of the construction of the plant on 18 January 2006, twelve days before the formal period for negotiation came to an end, might have been seen as a different matter, but for two points. The first is that another seven authorizations and almost two years of construction and installation of the plant remained ahead. More significantly, more than a month earlier, on 14 December 2005, the Argentine Foreign Secretary had already written to the Uruguayan Ambassador stating that

"The Government of the Argentine Republic concludes that, upon the Parties having failed to reach agreement, as specified by Article 12 of the River Uruguay Statute, this paves the way for the procedure provided for in Chapter XV of the said Statute. Consequently, the Government of the Argentine Republic hereby notifies the Uruguayan Government of the following:
(a) a dispute has arisen in connection with the application and interpretation of the Statute of the River Uruguay; and
(b) the direct negotiations between both Governments, referred to by Article 60 of the Statute, have been taking place since 3 August 2005 (the date of the first GTAN meeting) in respect of the dispute arising out of the unilateral authorizations for construction of the said industrial plants . . ."

Any action taken by Uruguay after 14 December 2005 cannot be seen as frustrating the negotiating process. That process was already effectively at an end.

26. Accordingly, I conclude that Uruguay, by granting the three approvals in respect of the projects during the period of negotiation, did not act in breach of its obligation to negotiate in good faith.

(Signed) Kenneth KEITH.


DECLARATION OF JUDGE SKOTNIKOV

1. I have voted in favour of all the operative paragraphs of the Judgment. However, I cannot fully concur with the Court's interpretation of the 1975 Statute of the River Uruguay.
I certainly agree that a Party planning activities referred to in Article 7 of the 1975 Statute, namely, "to construct new channels, substantially modify or alter existing ones or carry out any other works which are liable to affect navigation, the régime of the river or the quality of its waters", must clear a number of hurdles envisaged in Articles 7 to 12 of the 1975 Statute (to inform, to notify and, if there are objections, to negotiate). I support the Court's conclusion that Uruguay breached its obligations to inform, notify and negotiate (Judgment, para. 158).

2. However, I cannot accept the majority's logic according to which, after the end of the negotiation period, Uruguay, rather than referring its dispute with Argentina to the Court in accordance with Article 12 of the 1975 Statute, was free to proceed with the construction. In paragraph 154 of the Judgment,

"[t]he Court observes that the 'no construction obligation', said to be borne by Uruguay between the end of the negotiation period and the decision of the Court, is not expressly laid down by the 1975 Statute and does not follow from its provisions".

I respectfully submit that a "no construction obligation" does follow from the provisions of the Statute and from its object and purpose.

3. The provisions of Articles 7 to 12 of the 1975 Statute are clearly intended to prevent unilateral action which is not in conformity with the substantive provisions of the Statute, and thus to avoid causing injury to the rights of each Party while protecting their shared watercourse. Hence the obligations to inform, to notify and to negotiate. It is therefore only logical that, if there is still no agreement after negotiations have run their course, the Party initiating the project has the option of either abandoning it altogether or requesting the Court, in accordance with Article 12 of the 1975 Statute, to resolve the dispute. Under this scheme of things, no injury is inflicted on either Party's rights and the shared watercourse remains protected.

4. By contrast, as follows from the interpretation contained in the Judgment, the Parties, when concluding the Statute of the River Uruguay, must have agreed to allow such an injury to occur, with the possibility of it later being rectified by a decision of the Court.

The Parties cannot be presumed to have agreed to such an arrangement, since it is incompatible with the object and purpose of the 1975 Statute as defined in Article 1 ("the optimum and rational utilization of the River Uruguay"). There is nothing "optimum and rational" about including in the Statute a possibility of causing damage to the river and incurring financial losses, first by constructing new channels and other works (in violation of substantive obligations under the Statute) and then by destroying them.

5. In my view, Article 12 of the 1975 Statute establishes, on top of what is a classical compromissory clause contained in Article 60, an obligation for each Party to resolve disputes concerning activities mentioned in Article 7 by referral to the Court. This clearly follows from the language of Article 12: "[s]hould the Parties fail to reach agreement within 180 days following the notification referred to in article 11, the procedure indicated in chapter XV [i.e., Article 60] shall be followed" ("se observarâ" in Spanish) (emphasis added).

6. In the Court's interpretation (Judgment, para. 137), Article 12 is deprived of any meaning. There would be no need for this article at all if its only purpose were to activate Article 60, since the Parties could always have direct recourse to the latter.

7. According to the Judgment (para. 154), the Court is precluded from "authorizing" the planned activities and therefore only the objecting Party is entitled to have recourse to the Court under Article 12. This clearly contradicts Article 60, which is triggered by the Article 12 obligation of referral to the Court, since Article 60 establishes a right of each Party to that effect:

"Any dispute concerning the interpretation or application of . . . the Statute [of the River Uruguay] which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice." (Emphasis added.)
I might add that the Court would not be "authorizing" the planned activities. Rather, it would be dealing with alleged breaches by the objecting Party of the right of the Party planning the activities to the "optimum and rational utilization of the River Uruguay".

8. Uruguay itself understood the "no construction obligation" to extend until a decision of the Court. Ms Petrocelli, President of Uruguay's delegation to CARU, stated the following in her testimony before the Environment Committee of the Uruguayan Senate on 12 December 2005:

"The President: One of the arguments put forward is that if consultation had taken place, the answer would have been no. That is an awkward point. What would have happened if the answer had been no?
Ms Petrocelli: The works would not have been carried out. We would have had to refer the matter to an international tribunal to establish what damage was caused by a decision to reject."

9. To sum up: Articles 7 to 12 of the 1975 Statute of the River Uruguay clearly establish a procedural mechanism which includes not only an obligation to inform, notify and, if there are objections, to negotiate, but also an obligation for both Parties, should the negotiations fail, to settle the dispute by referring it to this Court.

(Signed) Leonid SKOTNIKOV.


Separate opinion of Judge Cançado Trindade

1. I have accompanied the Court's majority in the decision which it has just taken in the Pulp Mills case (Argentina v. Uruguay), for understanding that it contains what the Court could have found on the basis of a strict valuation of the evidence produced before it, but I regret not to be able to concur with parts of the Court's reasoning in the present Judgment, in particular its unfortunate overlooking of the general principles of law. I feel thus obliged to leave on the records the foundations of my own personal position in this respect. To this end, I purport, in this separate opinion, to review the process of enunciation of general principles of law in the realm of contemporary International Law, for the proper consideration of the issues raised in the cas d'espèce. In the course of the examination that follows, it will be clear that my own conception of the matter at issue contrasts with that of the Court's majority, as disclosed in the reasoning developed in the present case of the Pulp Mills.

2. My own position is in line with a current of international legal thinking, sedimented along the last nine decades (1920-2010), which, ever since the mid-seventies, has marked presence also in the domain of International Environmental Law. In my understanding, general principles of domestic as well as international law are endowed with autonomy. Their scope of application ratione materiae has in recent years been the object of attention of contemporary international tribunals, and I believe an important role is here to be played by the International Court of Justice (ICJ), attentive as it ought to be to the role of general principles, of particular relevance in the evolution of the expanding corpus juris of International Law in our times. Bearing this in mind, I shall turn my attention to some preliminary points.

I. Prolegomena

3. Irrespective of the way a case is presented by the contending parties to the ICJ, this latter is not restrained or bound by their arguments: it is entirely free to proceed to its own determination of the facts and to its own identification of the applicable law. In doing this – as it is entirely free to do, in the faithful exercise of its function – the Court proceeds in such a way that discloses, to a careful observer, its own conception of the Law. There are always distinct ways to develop a legal reasoning, and my natural inclination, even in a case like the present one of the Pulp Mills (Argentina v. Uruguay), is to dwell to a greater extent on legal principles than on chemical substances, unlike the Court has done in the present case.

4. In the examination of the substantive obligations under the 1975 Statute of the River Uruguay, the Court proceeded, with diligence and zeal, to a long and necessary examination of the impact of the discharges on the quality of the waters of the River Uruguay (Judgment, paras. 234-264), but that diligence and zeal seem to have vanished in respect of general principles of law (comprising those of International Environmental Law), only mentioned in passim, and without elaboration, in a few paragraphs of the present Judgment[FN1]. I feel thus obliged, in the present separate opinion, to attempt to redress the balance, by concentrating my thoughts on legal principles, and in particular those applicable in the cas d'espèce. I do so in a constructive spirit, in the hope (may I dare to nourish it?) that the Court will be more sensitive to legal principles in its future decisions; after all, along the last decades, legal principles have been much more familiar to me than chemical substances.

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[FN1] As to the Court's considerations (not the Parties' arguments), cf. para. 101 (principle of prevention), para. 145 (principle of good faith), para. 162 (principle of onus probandi incumbit actori), and para. 164 (precautionary "approach").
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5. This point is intertwined with that of the identification of the applicable law in the cas d'espèce which, in turn, ineluctably leads to the "sources" of law, of International Law. Even if the contending parties had not invoked general principles of law before the ICJ, this latter is entirely free to dwell upon them motu proprio. It so happens that, in the present case of the Pulp Mills, both Parties, Argentina and Uruguay, did invoke those principles; yet, the Court, for reasons which escape my comprehension, preferred not to dwell upon them, missing a unique occasion to give a remarkable contribution to our discipline. In the cas d'espèce, a key point which promptly comes to one's mind, for the settlement of a case like the present one, is whether an international tribunal like the ICJ can or should have recourse to principles of environmental law, under Article 38 (1) (c) of its Statute.

6. Such principles, proper to International Environmental Law, comprise the principle of prevention and the precautionary principle, added to the long-term temporal dimension underlying inter-generational equity, and the temporal dimension underlying the principle of sustainable development. Those principles are to be kept in mind also in the judicial determination of the facts of the concrete case. Among some preliminary questions (questions préalables) to be addressed, and which do not seem to have been considered with sufficient clarity to date, are the following: (a) whether the reference to "general principles of law" found in Article 38 (1) (c) of the ICJ Statute refers only to those principles found in foro domestico or encompasses likewise those principles identified also at international law level; and (b) whether these latter are only those of general international law or whether they comprise also those principles which are proper to a domain of international law.

7. Attention is next turned, in this separate opinion, in the light of the facts of the present case of the Pulp Mills, to related aspects beyond the inter-State dimension (with which this Court is so familiarized), namely: the imperatives of human health and well-being of peoples, the role of civil society in environmental protection; obligations of an objective character, beyond reciprocity; and the legal personality of the Administrative Commission of the River Uruguay (CARU). Last but not least, the relevant general principles of law are considered in their axiological dimension, and as indicators of the status conscientiae of the international community. In order to address those points, there is need, at first, to revise the legislative history of Article 38 of the Hague Court (PCIJ and ICJ) – on which so much has been written – as well as the recourse to principles in the case law of the ICJ, for the purposes of consideration of the matter in the framework of the present case of the Pulp Mills.

II. "General Principles of Law": the legislative history of the PCIJ/ICJ Statute revisited

8. One of the most debated issues within the Advisory Committee of Jurists entrusted with the drafting of the Statute of the old Permanent Court of International Justice (PCIJ), in

June-July 1920, pertained to the meaning to be ascribed to, and the material content of, the general principles of law as a (formal) "source" of International Law. The original proposal of President E. Descamps included in the list of (four) sources "the rules of international law as recognised by the legal conscience of civilised nations"[FN2]. In the debates of 2 July 1920, this proposal found fierce opposition on the part of Elihu Root, to whom principles of justice varied from country to country[FN3]. President E. Descamps replied that this might only be "partly true as to certain rules of secondary importance"; however, he added,

"it is no longer true when it concerns the fundamental law of justice and injustice deeply engraved on the heart of every human being and which is given its highest and most authoritative expression in the legal conscience of civilised nations"[FN4].

----------------------------------------------------------------------------------------------------------------
[FN2] PCIJ/Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (16 June-24 July 1920) with Annexes, La Haye, Van Langenhuysen Frères, 1920, point No. 3, p. 306, Ann. No. 3.
[FN3] Ibid, p. 310.
[FN4] Ibid, pp. 310-311.
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9. A. de LaPradelle, likewise, opposed E. Root's positivist position that judges could only decide in accordance with "recognised rules" and that in their absence they "should pronounce a non-liquet'; he regarded this view as "inadmissible", and added that "[t]he competence of arbitrators might be limited, but not that of the judges"[FN5]. Trying to find a breakthrough, Lord Phillimore pondered that "[g]enerally speaking, all the principles of common law are applicable to international affairs. They are in fact part of international law."[FN6] G. F. Hagerup added that judges should issue their decision according to "rules of law", and should "not declare that it is impossible for them to decide because of the absence of rules. There must be no possibility of a denial of justice."[FN7]

----------------------------------------------------------------------------------------------------------------
[FN5] Ibid, pp. 313-314.
[FN6] Ibid, p. 316.
[FN7] Ibid., p. 317.
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10. In this line of reasoning, President E. Descamps also opposed the possibility of non liquet, asserting that, if neither conventional law nor custom existed, the judge ought then to apply general principles of law[FN8]. And he then clearly reasserted his jusnaturalist position, in upholding – besides treaties and custom – the search for

"la norme de la justice objective dans des conditions qui soient précisément de nature à prévenir l'arbitraire . . . [L]a justice objective est la norme naturelle dont l'application s'impose au juge . . . Le second des clairs regards que je donne au juge, c'est la conscience juridique des nations civilisées dans ses éclatantes manifestations"[FN9].

In the continuing debates, of 3 July 1920, Lord Phillimore expressed his own view that general principles (referred in amended point No. 3) were those accepted by all nations in foro domestico1. A. de LaPradelle, while admitting that such principles "were also sources of international law", added that they were so if they had obtained "unanimous or quasi-unanimous support"[FN10]. The original proposal (supra) was amended, and, as submitted by E. Root, included in the list of (four) sources "the general principles of law recognised by civilised nations"[FN11]. It was clearly a solution of compromise by the Advisory Committee of Jurists, between the supporters of the jusnaturalist and the positivist outlooks of the matter, led by President E. Descamps and E. Root, respectively.

----------------------------------------------------------------------------------------------------------------
[FN8] Ibid, pp. 318-319, and cf. p. 322.
[FN9] Ibid, p. 323.
[FN10] PCIJ/Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (16 June-24 July 1920) with Annexes, La Haye, Van Langenhuysen Frères, 1920, point No. 3, p. 335.
[FN11] Ibid., p. 344, Annex No. 1.
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11. This phraseology was provisionally adopted, to form the basis of what would shortly afterwards become Article 38 (3) of the Statute of the PCIJ, later ICJ (new Article 38 (1) (c)). Two significant statements were made, in favour of the insertion of the express reference to general principles of law in the proposed list of formal sources of international law. The day before the provisional adoption, President E. Descamps eloquently defended his view of the existence of an "objective justice" in the following way:

"C'est une des convictions les plus profondes de ma vie vouée à l'étude et à la pratique du droit international, qu'il n'est pas possible de chasser du domaine de l'ordre juridique, en ses applications, une loi fondamentale de justice, . . . pour promulguer certaines règles comme nécessairement liées à l'économie essentielle des rapports sociaux dans la vie internationale, et comme s'appliquant à la diversité des faits qu'embrasse cette vie. . . .
N'hésitons donc pas . . . à placer, parmi les normes qui doit suivre le juge dans la solution des différends qui lui sont soumis, la loi de la justice objective
[L]a loi du juste et de l'injuste, telle qu'elle est gravée et tracée de façon ineffaçable au coeur des peuples civilisés, . . . est non seulement l'élément générateur par excellence du progrès du droit international, mais le complément indispensable pour le juge de l'application du droit, dans la haute mission qui lui est conférée."[FN12]

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[FN12] Ibid., pp. 324-325.
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12. The statement of Raul Fernandes, on the day of the provisional adoption, likewise supported the inclusion, into the part of the draft under discussion, of an express reference to general principles of law, so as to satisfy a need of the judge in order to decide a case. He pondered that "les sentences ainsi fondées" – on general principles of law – "sont en règle générale les plus justes, car les principes s'inspirent toujours de la justice, tandis que la loi formelle s'en écarte souvent"[FN13]. Rules emanating from principles are "not established either by convention or custom", and the draft under consideration would, in the opinion of R. Fernandes, much gain "en accordant à la Cour de justice le pouvoir de juger – à défaut de droit conventionnel ou coutumier – selon les principes de droit international . . ."[FN14].

----------------------------------------------------------------------------------------------------------------
[FN13] Ibid., pp. 345-346.
[FN14] Ibid, p. 346.
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13. Last but not least, in the course of the debates, A. de LaPradelle commented that the inclusion of the reference to "general principles of law" was sufficient, and did not need the requirement of having to be recognized by "civilised nations"; he deemed this to be "superfluous, because law implies civilisation"[FN15]. His colleagues, however, missed his point, and the deletion of that requirement was not made. The draft, with the inclusion of such general principles of law, was adopted[FN16], to become draft Article 35[FN17], subsequently renumbered Article 38, of the PCIJ Statute.

----------------------------------------------------------------------------------------------------------------
[FN15] Ibid., p. 335.
[FN16] PCIJ/Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (16 June-24 July 1920) with Annexes, La Haye, Van Langenhuysen Frères, 1920, point No. 3, p. 584.
[FN17] Ibid., p. 730.
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14. A quarter of a century later, in the debates of the 1945 San Francisco Conference prior to the adoption of the United Nations Charter and the Statute of the ICJ, it was agreed by the participating Delegations (IV Commission, Committee I) that the corresponding Article 38 of the new Statute would not undergo a general revision; the time was "not opportune" for that, as rapporteur Jules Basdevant pointed out[FN18]. The only minor change introduced – in the chapeau of Article 38 – resulted from a Chilean proposal, unanimously adopted[FN19].

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[FN18] Documents of the United Nations Conference on International Organization (UNCIO – San Francisco, 1945), Vol. XIV, p. 843.
[FN19] Ibid., Vol. XIII, pp. 284-285.
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15. The new Article 38 of the Statute opened, from then onwards, with the provision that

"The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply: . . . "

On the occasion, it was pointed out that this sole small modification in the drafting of Article 38 was meant to be a clarification; yet, the lacuna in the previous Statute in respect of the point concerned had not prevented the old PCIJ from "regarding itself as an organ of international law; but the addition will accentuate that character of the new Court"[FN20].

----------------------------------------------------------------------------------------------------------------
[FN20] Ibid., Vol. XIII, p. 392.
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III. General Principles of Law as a formal "source" of international law: their autonomy

16. The mens legis of the expression "general principles of law", as it appears in Article 38 (1) (c) of the ICJ Statute, clearly indicates that those principles constitute a (formal) "source" of International Law, on their own, not necessarily to be subsumed under custom or treaties. The attitude of part of contemporary expert writing, of trying to see if a given principle has attained the "status" of a "norm" of customary international law, or has been "recognized" in conventional international law, simply misses the point, and is conceptually flawed. Such attitude fails to understand that a general principle of law is quite distinct from a rule of customary international law or a norm of conventional international law. A principle is not the same as a norm or a rule; these latter are inspired in the former, and abide by them. A principle is not the same as a custom or a conventional norm.

17. Not seldom general legal principles are expressly invoked, or referred to, not only in treaties and international practice (of States and other subjects of International Law), but also in national and international case law (cf. infra), and in doctrine. But even if they were not so invoked, they would not thereby be deprived of their condition of an autonomous formal "source" of International Law. Furthermore, in our times, they are also invoked, or referred to, in resolutions of international organizations (starting with the United Nations); despite the fact that such resolutions are not listed in Article 38(1) (c) of the ICJ Statute, the ICJ has taken them into account and has applied them (cf. infra). Such references or invocations of general principles, in distinct manifestations or formal "sources" of International Law, bear witness of their importance, and proclaim it. But even if such invocations or references did not exist, general principles would still be there, at the origins and foundations of any legal system; in my perception, there cannot be any legal system without them. They cannot be overlooked by the ICJ.

18. Furthermore, my own understanding is in the sense that general principles of law – of domestic or international manifestation – stand as a category of their own, conceptually distinct from customary or conventional international law, in the list of "formal" sources under Article 38 of the ICJ Statute. General principles of law stand on their own, as one of the (formal) "sources" of International Law (endowed with autonomy), that the judge can resort to, bearing in mind the circumstances of the case at issue. In the drafting of the PCIJ (and ICJ) Statute, those principles were not equated with custom or treaties, they were identified as a separate and additional category, as one of the "formal" sources of International Law. And that is how, in my perception, they have been applied by the Hague Court in its jurisprudence constante (cf. infra).

IV. Recourse to principles in the case law of the ICJ

19. In its case law, the Hague Court [PCIJ and ICJ] has, in the judicial settlement of the cases brought before its attention, often resorted to general principles of law. It has taken the expression to cover general principles of international law as well. The old PCIJ, for example, in the Oscar Chinn case (1934), expressly referred to "general principles of international law" (pp. 81 and 87). In the célèbre Chorzow Factory case (1928), it took the obligation to make reparation for any breach of an international engagement as amounting to "[a general] principle of international law" (p. 29). And in the Mavrommatis Palestine Concessions case (1924), it characterized the protection of nationals or subjects by resort to diplomatic protection as corresponding to "an elementary principle of international law" (p. 12).

20. As for the ICJ, it has likewise applied general principles of law in the same understanding, i.e., as comprising principles recognized both in foro domestico (and transposed into international level) and in international law itself. Thus, in the Corfu Channel case (1949), the Court invoked "well-recognized principles" of international law (p. 22). In its Advisory Opinion on Reservations to the Convention against Genocide (1951), the ICJ, after referring to the "conscience of mankind", asserted that the principles underlying the Convention against Genocide are "binding on States, even without any conventional obligation" (p. 23).

21. In the Nicaragua v. United States case (1986), the Court reiteratedly referred to "fundamental general principles of humanitarian law" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, paras. 218, 220 and 255). In that same Judgment (of 27 June 1986), the ICJ further referred to "principles which the General Assembly declared to be 'basic principles' of international law" (ibid., para. 203), and itself invoked "the principle of non-intervention" (paras. 202 and 204). Much earlier on, in the Right of Passage over Indian Territory case (Portugal v. India, Judgment of 12 April 1960), the ICJ took note of the invocation by Portugal of "general international custom, as well as the general principles of law" (I.C.J. Reports 1960, p. 43), of course not taking them as synonymous.

Opinion on Legal Consequences of the Construction of a Wall (of 9 July 2004, p. 271, para. 88). In the aforementioned Judgment in the East Timor case, it characterized the principle of self-determination of peoples as "one of the essential principles of contemporary international law" (I.C.J. Reports 1995, p. 102, para. 29). In the case of the Gabcikovo-Nagymaros Project, the ICJ used interchangeably the expressions "a principle of international law" and "a general principle of law" (I.C.J. Reports 1997, p. 53, para. 75), as well as "a principle of international law or a general principle of law" (ibid., para. 76).

24. General principles of law applied by the ICJ have encompassed those of both substantive[FN21] and procedural law. In the (first) Nuclear Tests case (1974), the ICJ invoked, e.g., the principle of good faith (bona fides, p. 472, para. 46). In its Advisory Opinion on the Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, the ICJ relied on the general principle of law of the equality of arms/égalité des armes (of the procedural parties), I.C.J. Reports 1973, p. 180, para. 36). On other occasions (e.g., Advisory Opinion on Effect of Awards, 1954, p. 53; Application of the Convention against Genocide case, 2007, p. 90, para. 115), it has invoked the principle of res judicata. In the case of the Frontier Dispute (Burkina Faso v. Mali, 1986), it resorted to the principle of utipossidetis (pp. 565 and 567, paras. 20 and 26).

----------------------------------------------------------------------------------------------------------------
[FN21] Cf., e.g, the Advisory Opinion on Namibia (I.C.J. Reports 1971), p. 48, para. 98.
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25. In its former Advisory Opinion, of half a decade ago, on Legal Consequences of the Construction of a Wall (2004), already referred to, the ICJ proceeded to identify the "principles of international law" that were relevant to tackle the issue submitted to its cognizance by the United Nations General Assembly (p. 154, para. 39, p. 171, para. 86 and p. 181, para. 114). The Court made express mention of the principle of the prohibition of the threat or use of force (Article 2 (4) of the United Nations Charter), and of the principle of self-determination of peoples[FN22] (p. 171, para. 87). The ICJ also referred to this latter as the right of all peoples to self-determination (as under Article 1 of the two United Nations Covenants on Human Rights – p. 171, para. 88 and p. 182, para. 118). The ICJ also referred to the principle of peaceful settlement of disputes (p. 200, para. 161), as well as to the principles of International Humanitarian Law (p. 199, para. 157).

----------------------------------------------------------------------------------------------------------------
[FN22] The Court has, for example, invoked the principle of self-determination of peoples in its Advisory Opinion on Namibia (of 21 June 1971, p. 31, para. 52); in its Judgment in the East Timor case (Portugal v. Australia, of 30 June 1995, p. 201, para. 29); in its Judgment of 1986 in the Frontier Dispute case (Burkina Faso v. Mali, pp. 566-567, para. 25); in its Advisory Opinion on Western Sahara (of 16 October 1975, pp. 31 and 33, paras. 55 and 59); and in its Advisory
----------------------------------------------------------------------------------------------------------------

V. General principles of – domestic and international – law

1. A lesson from the legislative history of the PCIJ (and ICJ) Statute

26. When Article 38 of the Statute of The Hague Court was adopted, there were, within the Advisory Committee of Jurists, two outlooks. The first pursued to the identification of those principles as recognized in foro domestico (Elihu Root, Lord Phillimore); the other pursued to the identification of the principles of international law (E. Descamps, Raul Fernandes). The first attitude can be understood (not necessarily accepted) in view of the fact that it was at domestic law level that general principles of law (and mainly of procedural law) first found expression, in historical perspective. The law of nations (as we behold it today) emerged later.

27. Yet, to hold this view as inescapable, seems to amount to a static, and dogmatic position, which requires demonstration. It does not appear persuasive to me at all. In our days, given the extraordinary development of the law of nations (droit des gens), there is epistemologically no reason not to have recourse to general principles of law as recognized in domestic as well as international law (cf. infra). As early as in 1920, there were those who had an intuition in support of this view. It is, moreover, in my understanding, well in keeping with the letter and spirit of Article 38 of the Hague Court, and it takes into due account the progressive development of International Law in our times.

28. In contemporary International Law, general principles of law find concrete expression not only in foro domestico, but also at international level. There can be no legal system without them. Always keeping their autonomy, they may find expression in other formal "sources" or manifestations of International Law (and not only treaties and custom), even though not listed in Article 38 (1) (c) of the ICJ Statute, but nonetheless resorted to by the ICJ in practice. It is the case, inter alia, of resolutions of international organizations, in particular of the United Nations General Assembly[FN23]. Bearing this in mind, may I recall, at this stage, some relevant doctrinal developments on general principles of law (found at national as well as international levels), as manifested in the times of both the PCIJ and the ICJ.

----------------------------------------------------------------------------------------------------------------
[FN23] Cf., in general, e.g., [Various Authors,] Principles of International Law Concerning Friendly Relations and Cooperation (ed. M. Sahovic), Belgrade, Institute of International Politics and Economics/Oceana Publs., 1972, pp. 3-275; M. Sahovic, "Codification des principes du Droit international des relations amicales et de la coopération entre les États", 137 Recueil des Cours de l'Académie du Droit International de La Haye (1972) pp. 249-310; G. Arangio-Ruiz, "The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations", 137 Recueil des Cours de l'Académie du Droit International de La Haye (1972) pp. 419-742; [Various Authors,] The United Nations and the Principles of International Law - Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London, Routledge, 1994, pp. 1-255. And, for the view that United Nations General Assembly resolutions acknowledge general principles of law as universal principles of international law, cf. debates on "The Role of General Principles of Law and General Assembly Resolutions", in Change and Stability in International Law-Making (eds. A. Cassese and J.H.H. Weiler), Berlin, W. de Gruyter, 1988, pp. 34, 37, 47-48, 50-52 and 54-55 (interventions by W. Riphagen, J. Weiler, E. Jiménez de Aréchaga. G. Abi-Saab and A. Cassese); and cf. also G. Balladore Pallieri, Diritto Internazionale Pubblico, 8th. rev. ed., Milano, Giuffrè, 1962, pp. 25-26 and 95-97; A. Verdross, "Les principes généraux de droit dans le système des sources du droit international public", in Recueil d'études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 530 and 526.
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2. Relevant doctrinal developments on general principles of law (a) In the PCIJ times

29. The review that follows is not meant to be exhaustive, but rather selective, to illustrate the point I am making, as advanced in doctrinal writings in the periods of operation of both the old PCIJ and the ICJ. In his study of the case law of the old PCIJ on the sources of International Law, for example, Max Sorensen, while subscribing to the then prevailing view that general principles of law were those crystallized in foro domestico[FN24], did not fail to point out that, however, already at that time, there were jurists (like J. Basdevant and F. Castberg) who thought differently. The minority view of expert writing, already in the twilight of the old PCIJ, was that those principles allowed the Court to decide also on the basis of the general principles of international law itself[FN25].

----------------------------------------------------------------------------------------------------------------
[FN24] Max Sorensen, Les sources du droit international, Copenhague, E. Munksgaard, 1946, p. 113.
[FN25] Ibid, p. 113.
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30. In fact, in the minority – and in my view more enlightened – position, already in 1936, Jules Basdevant, for example, sustained that "les principes généraux de droit reconnus par les nations civilisées peuvent être cherchés non seulement dans le droit interne, mais aussi dans le droit international particulier ou relative par l'emploi de la méthode comparative"[FN26]. To look for those principles only in foro domestico would hardly be adequate, as not always such principles would be transposed onto international level without difficulties; hence the inescapable need to identity or acknowledge them also at international level itself, though this was, at that time, still a somewhat "unexplored" exercise[FN27].

----------------------------------------------------------------------------------------------------------------
[FN26] Jules Basdevant, "Règles générales du droit de la paix", 58 Recueil des Cours de l'Académie de Droit International (1936) p. 504.
[FN27] Cf. Jules Basdevant, "Règles générales du droit de la paix", 58 Recueil des Cours de l'Académie de Droit International (1936), pp. 498-504.
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31. Likewise, Frede Castberg, as early as in 1933, in assessing the work of the Advisory Committee of Jurists which drafted in 1920 the Statute of the PCIJ (cf. supra), challenged the promptly prevailing view that – in the line of a remark by Lord Phillimore – general principles of law were those applied in foro domestico. Distinctly, F. Castberg beholding in them true principles of justice, contended that

"Il serait par trop irrationnel de permettre à la Cour de rechercher les normes à appliquer dans ces décisions parmi les principes généraux de n'importe quel domaine de droit interne, sans qu'elle pût statuer selon les principes généraux du droit international. Il n'y a aucun motif rationnel pour supposer que, de tous les principes généraux du droit, précisément ceux du droit international soient exclus comme base des décisions de la Cour Permanente de Justice Internationale. Il est vrai que bien des principes généraux du droit interne sont valables aussi dans les rapports entre États. . . . Il y a quelques dizaines d'années, on était peut-être trop porté, dans la théorie du droit international, à exclure toute application des principes du droit interne. Mais il ne faut pas maintenant se jeter à l'autre extrême et vouloir même exclure les principes du droit international en faveur des principes du droit interne. Un système aussi peu rationnel ne saurait être accepté, à moins qu'il ne soit établi d'une manière expresse par un traité. . . ."[FN28]

----------------------------------------------------------------------------------------------------------------
[FN28] Frede Castberg, "La méthodologie du Droit international public", 43 Recueil des Cours de l'Académie du Droit International de La Haye (1933) pp. 370 and 372 – Precisely four decades later, in 1973, F. Castberg, referring to "the great principle pacta sunt servanda", as a "fundamental principle of public international law", observed that the confines between this latter and domestic law had at that time "become blurred", and insisted on his view that there was "not sufficient reason to separate . . . the general principles of law from their attachment" to the two "traditional" main branches of the law, namely, "internal law and public international law"; Frede Castberg, "International Law in Our Time", 138 Recueil des Cours de l'Académie du Droit International de La Haye (1973), pp. 5 and 8. In other words, general principles of law can be identified at the levels of both domestic law and public international law itself.
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32. May I, in addition, recall the views of two other jurists on the matter at issue, made public also in the years of operation of the old PCIJ. In his thematic course of 1935 at The Hague Academy of International Law, Alfred Verdross pondered that, in approaching the "sources" of International Law, there are ultimately two basic opposing conceptions: one, which starts from the "idée du droit", and the other, which privileges consent or the will; the latter is found in (philosophical) positivism, while the former upholds that the "idée du droit", emanating from human conscience, paves the way for a universal jus gentium[FN29].

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[FN29] A. Verdross, "Les principes généraux du droit dans la jurisprudence internationale", 52 Recueil des Cours de l'Académie de Droit International de La Haye (1935), pp. 195-197 and 202-203.
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33. This approach, starting from the idea of an "objective justice", sustains the autonomy of principles, thus opposing the typical positivist outlook, which insists that they ought to be manifested through treaties or custom[FN30]. General principles of law, as set forth in Article 38 (3) of the Statute of the PCIJ, are thus an autonomous "source" of International Law[FN31], and can be applied concomitantly with treaties and custom, and be resorted to in order to interpret provisions of treaties and rules of customary law[FN32].

----------------------------------------------------------------------------------------------------------------
[FN30] Ibid, pp. 216 and 221.
[FN31] Ibid., pp. 223, 228, 234 and 249.
[FN32] A. Verdross, "Les principes généraux du droit dans la jurisprudence internationale", 52 Recueil des Cours de l'Académie de Droit International de La Haye (1935), p. 227.
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34. On his part, in a study published one decade later, in 1944, Charles Rousseau expressed his view that the concept of "general principles of law" is not limited only to those of domestic law, but comprises likewise the general principles of international law[FN33]. He insisted that the concept encompasses "les principes universellement admis dans les législations internes et les principes généraux de l'ordre juridique international", thus "englobant de toute evidence le droit international aussi bien que le droit interne"[FN34].

----------------------------------------------------------------------------------------------------------------
[FN33] Ch. Rousseau, Principes généraux du Droit international public, Vol. I (Sources), Paris, Pédone, 1944, p. 891.
[FN34] Ibid., p. 901.
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35. General principles of law, thus understood – he proceeded – are an autonomous "source" of International Law, distinct from customary rules and conventional norms[FN35]. He further pointed out that, already at that time, expert writing seemed divided on the matter: "les auteurs positivistes, pour qui le droit international a un contenu exclusivement volontaire, ont naturellement cherché à minimiser le rôle des principes généraux du droit"[FN36]; those who opposed the positivist dogma ascribed greater importance to general principles of law, "provenant directement du droit objectif[FN37]”.

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[FN35] Ibid., pp. 913-914.
[FN36] Ibid, p. 926.
[FN37] Ibid., p. 927.
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36. Those were some of the more penetrating reflections devoted to the general principles of law (comprising the principles of International Law) in the times of the old PCIJ. As already pointed out, they were not the only ones, as other doctrinal works were dedicated particularly to the study of the matter at issue, a subject which attracted considerable attention at that time[FN38]. Such was the case of Alejandro Alvarez, who, in an exposé de motifs of a proposed declaration of principles of International Law, published on the eve of the outbreak of the II World War, called for a reconstruction of International Law bearing in mind not only positive law, but also the principles, which oriented legal norms and rules, and which, in his view, prevailed in the whole of International Law, and appeared as "manifestations of the juridical conscience of the peoples"[FN39].

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[FN38] Cf. further, inter alia, T. J. Lawrence, Les principes de droit international, 5th. ed. (transl. J. Dumas and A. de La Pradelle), Oxford, University Press, 1920, pp. 99-120; P. Derevitzky, Les principes du Droit international, Paris, Pédone, 1932; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens, 1953; G. Scelle, Précis de droit des gens —principes et systématique, Paris, Rec. Sirey, 1934.
[FN39] A. Alvarez, Exposé de motifs et Déclaration des grands principes du Droit international moderne, 2nd. ed., Paris, Éds. Internationales, 1938, pp. 8-9 and 16-23, and cf. pp. 27 and 51.
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(b) In the ICJ times

37. Considerably more attention was devoted to the principles of International Law some decades ago (including the times of the PCIJ) than in our days. Yet, those principles retain, in my view, their utmost importance, as they inform and conform the legal norms of any legal system. In the past, successive doctrinal works were dedicated particularly to the study of the principles of International Law, in the framework of the foundations of the discipline and the consideration of the validity of its norms. In the fifties[FN40] and the sixties[FN41] some courses delivered at The Hague Academy of International Law addressed the theme of the principles of International Law, which was retaken in monographs in the sixties[FN42] and the seventies[FN43]. Subsequently, except for a few works[FN44], there appeared to occur, rather surprisingly, a decline in the interest in the study of the matter, parallel to the dissemination of a seemingly – and regrettable – pragmatic approach to the study of International Law.

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[FN40] Cf. H. Rolin, "Les principes de Droit international public", 77 Recueil des Cours de l'Académie de Droit International de La Haye [RCADI] (1950) pp. 309-479; G. Schwarzenberger, "The Fundamental Principles of International Law", 87 RCADI (1955) pp. 195-385; P. Guggenheim, "Les principes de Droit international public", 80 RCADI (1952) pp. 5-189; Ch. Rousseau, "Principes de Droit international public", 93 RCADI (1958) pp. 369-549; G. Fitzmaurice, "The General Principles of International Law, Considered from the Standpoint of the Rule of Law", 92 RCADI (1957) pp. 1-223.
[FN41] Cf. M. Sorensen, "Principes de Droit international public", 101 RCADI (1960) pp. 1-251; P. Reuter, "Principes de Droit international public", 103 RCADI (1961) pp. 429-656; R. Y. Jennings, "General Course on Principles of International Law", 121 RCADI (1967) pp. 327-600.
[FN42] Cf. M. Miele, Principi di Diritto Internazionale, 2nd. ed., Padova, Cedam, 1960; L. Delbez, Les principes généraux du contentieux international, Paris, LGDJ, 1962; L. Delbez, Les principes généraux du Droit international public, 3rd. ed., Paris, LGDJ, 1964; H. Kelsen, Principles of International Law, 2nd. ed., N.Y., Holt Rinehart & Winston, 1966; W. Friedmann, "The Uses of 'General Principles' in the Development of International Law", 57 American Journal of International Law (1963) pp. 279-299; M. Virally, "Le rôle des 'principes' dans le développement du Droit international", in Recueil d'études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 531-554; M. Bartos, "Transformations des principes généraux en règles positives du Droit international", in Mélanges offerts à J. Andrassy, La Haye, Nijhoff, 1968, pp. 1-12.
[FN43] Cf., e.g., B. Vitanyi, "La signification de la 'généralité' des principes de droit", 80 Revue générale de Droit international public (1976) pp. 536-545.
[FN44] Cf., e.g., I. Brownlie, Principles of Public International Law, 6th. ed., Oxford, Clarendon Press, 2003, pp. 3 et seq..
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38. Although concern with the need to consider the principles of International Law appears to have declined in the last quarter of century, those principles have, nevertheless, always marked their presence in the doctrine of International Law, including the contemporary one[FN45]. Principles of International Law permeate the entire international legal system, playing an important role in international law-making as well as in the application of International Law. In some cases (such as, e.g., in the Law of Outer Space), they have paved the way for the construction of a new corpus juris, in a new domain of International Law which required regulation, and the principles originally proclaimed have fully retained their value to date[FN46]. This is the case, e.g., of International Environmental Law in our times (cf. infra).

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[FN45] Cf., e.g., inter alia, H. Thierry, "L'évolution du Droit international – Cours général de Droit international public", 222 RCADI (1990) pp. 123-185; G. Abi-Saab, "Cours général de Droit international public", 207 RCADI (1987) pp. 328-416.
[FN46] Cf. M. Lachs, "Le vingt-cinquième anniversaire du traité régissant les principes du droit de l'espace extra-atmosphérique, 1967-1992", 184 Revue française de droit aérien et spatial (1992) No. 4, pp. 365-373, esp. pp. 370 and 372.
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39. Principles of International Law are guiding principles of general content, and, in that, they differ from the norms or rules of positive international law, and transcend them. As basic pillars of the international legal system (as of any legal system), those principles give expression to the idée de droit, and furthermore to the idée de justice, reflecting the conscience of the international community[FN47]. Irrespective of the distinct approaches to them, those principles stand ineluctably at a superior level than the norms or rules of positive international law. Such norms or rules are binding, but it is the principles which guide them[FN48]. Without these latter, rules or techniques could serve whatever purposes. This would be wholly untenable.

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[FN47] G.M. Danilenko, Law-Making in the International Community, Dordrecht, Nijhoff, 1993, pp. 7, 17, 175 and 186-187, and cf. p. 215.
[FN48] Bin Cheng, General Principles of Law . . ., op. cit. supra No. (39), p. 393.
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40. Already in the era of the United Nations, Grigori Tunkin perspicatiously went forward in its support for the application by the ICJ of general principles of international law. Attentive to the sole change (proposed by Chile) introduced into Article 38 (1) (c) of the new ICJ Statute in 1945 (supra), to the effect that the ICJ has the function "to decide in accordance with international law such disputes as are submitted to it", G. Tunkin contended that that amendment clarified that general principles of law comprised those principles common to national legal systems and to international law: they are legal postulates followed "in national legal systems and in international law", and resorted to in the process of interpretation and application of pertinent rules in concrete cases[FN49].

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[FN49] G. Tunkin, "'General Principles of Law' in International Law", in Internationale Festschrift fur A. Verdross (eds. R. Marcic, H. Mosler, E. Suy and K. Zemanek), Munchen/Salzburg, W. Fink Verlag, 1971, pp. 526 and 531.
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41. In the mid-fifties, Hildebrando Accioly stressed the "preeminent character" of general principles of law, at domestic and international levels, emanating directly from natural law, and rendering concrete the norms and rules of positive law, in conformity with them[FN50]. Shortly afterwards, by the late fifties, C. Wilfred Jenks expressed his belief that an inquiry into the general principles of law (found in distinct legal systems, and further encompassing the principles of International Law itself) could much contribute to provide the "basic foundations of a universal system of International Law"[FN51]. One decade later, A. Favre sustained, in 1968, that general principles of law are "the expression of the idea of justice", having a universal scope and expressing the "juridical conscience of humankind"; rather than deriving from the "will" of States, they have an "objective character" and constitute a "fonds juridique commun pour l'ensemble des États"[FN52], thus securing the unity of law and enhancing the idea of justice to the benefit of the international community as a whole. It is in the light of those principles that the whole corpus of the droit des gens is to be interpreted and applied.

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[FN50] H. Accioly, Tratado de Direito InternacionalPublico, 2nd. ed., Vol. I, Rio de Janeiro, M.R.E., 1956, pp. 33 and
37.
[FN51] C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 106 and 120-121, and cf. p. 172.
[FN52] A. Favre, "Les principes généraux du Droit, fonds commun du Droit des gens", in Recueil d'études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 369, 374-375, 379, 383 and 390.
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42. In the mid-eighties, Hermann Mosler observed that general principles of law have their origins either in national legal systems or at the level of international legal relations, being cosubstantial with jus gentium, and applied to relations among States as well as relations among individuals. To him, those principles, endowed with autonomy and conforming the jus gentium, do not emanate from positive law-making, but rather by their awareness which gives them expression: those principles are ethical "commandments" emanating from the "conscience of mankind", which considers them "indispensable for the coexistence of man in organized society"[FN53].

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[FN53] H. Mosler, "General Principles of Law", in Encyclopedia of Public International Law (ed. R. Bernhardt), Vol. 7, Max Planck Institute for Comparative Public Law and International Law/Ed. North-Holland, Amsterdam, 1984, pp. 90-92 and 95 – On his part, in his later years, Alfred Verdross pondered that general principles of law "illuminate the whole international legal order"; A. Verdross, Derecho Internacional Publico (5th Spanish ed., 1st reimpr. – transl. from 4th ed. of Volkerrecht, 1959), Madrid, Ed. Aguilar, 1969, p. 98.
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43. The sustained validity of the principles of International Law has been upheld in the evolving law of the United Nations. The ICJ, as "the principal judicial organ of the United Nations" (Article 92 of the United Nations Charter), cannot prescind from them in the exercise of its contentious function. As proclaimed in the United Nations Charter (Article 2) in 1945, and restated in the 1970 United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States[FN54], the general principles of international law retain their full and continuing validity in our days. A violation of a norm or rule of International Law does not affect the validity of its corpus juris and its guiding principles.

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[FN54] United Nations, General Assembly resolution 2625(XXV).
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44. Given the overriding importance of those principles, it is not surprisingly that they found expression in the United Nations Charter (Article 2), adopted in 1945. A quarter of a century afterwards, the 1970 Declaration of Principles was meant to be a law-declaring resolution as to those basic principles, so as to serve as a guide for all States in their behaviour. While the traditional general principles of law (found in foro domestico) disclosed a rather procedural character, the general principles of international law – such as the ones proclaimed in the 1970 Declaration – revealed instead a substantive content (so as to guide State conduct), proper of the very foundations of International Law; such general principles of International Law (as set forth in the 1970 Declaration of Principles) are thus vested with universal importance for the international community itself[FN55].

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[FN55] Cf. debates on "The Role of General Principles of Law and General Assembly Resolutions", in Change and Stability in International Law-Making (eds. A. Cassese and J.H.H. Weiler), Berlin, W. de Gruyter, 1988, pp. 47-48 and 54-55 (interventions of J.H.H. Weiler, E. Jiménez de Aréchaga and A. Cassese).
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45. Principles of international law constitute altogether the pillars of the international legal system itself. By the turn of the century, the United Nations Millenium Declaration, adopted by the United Nations General Assembly (resolution 55/2) on 18 September 2000, has stated that the principles of the United Nations Charter "have proved timeless and universal" (para. 3). Half a decade later, in its recent 2005 World Summit Outcome (of 15 September 2005), the United Nations General Assembly has again evoked the principles of the United Nations Charter, expressly referring to the aforementioned 1970 Declaration of Principles (para. 73).

46. As already seen, the Hague Court (PCIJ and ICJ) has often applied general principles of law in its jurisprudence constante (cf. supra). It has applied them as an autonomous formal "source" of International Law. Yet, the Hague Court, always so sober in applying them, has apparently not felt it necessary to dwell further upon them, or to stress their utmost importance; in its present Judgment in the Pulp Mills case, it has not even asserted or endorsed the general principles of International Environmental Law (such as those of prevention and of precaution). I thus feel it my duty to do so, particularly in the cas d'espèce, as, in addition, both contending parties, Argentina and Uruguay, have expressly invoked such principles in the contentious proceedings before this Court.

47. It is indeed significant – and it should not pass unnoticed – that Uruguay and Argentina, concurring in their invocation of general principles of law, were, both of them, being faithful to the long-standing tradition of Latin American international legal thinking, which has always been particularly attentive and devoted to general principles of law, in the contexts of both the formal "sources" of international law[FN56] as well of codification of international law[FN57]. Even those who confess to reason still in an inter-State dimension, concede that general principles of law, in the light of natural law (preceding historically positive law), touch on the origins and foundations of international law, guide the interpretation and application of its rules, and point towards its universal dimension; those principles being of a general character, there is no sharp demarcation line between those recognized in domestic law (in foro domestico) and those of international law proper[FN58].

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[FN56] Andrés Bello, Principios de Derecho Internacional (1832), 3rd. ed., Paris, Libr. Garnier Hermanos, 1873, pp. 3 et seq.; C. Calvo, Manuel de droit international public et privé, 3rd. rev. ed., Paris, A. Rousseau Ed., 1892, Chap. I, pp. 69-83; L.M. Drago, La Republica Argentina y el Caso de Venezuela, Buenos Aires, Impr. Coni Hermanos, 1903, pp. 1-18; L.M. Drago, La Doctrina Drago – Coleccion de Documentos (pres. S. Pérez Triana), London, Impr. Wertheimer, 1908, pp. 115-127 and 205; A.N. Vivot, La Doctrina Drago, Buenos Aires, Edit. Coni Hermanos, 1911, pp. 39-279; II Conférence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W. P. Van Stockum, 1907, pp. 60-81, 116-126, 208-223 and 315-330; Ruy Barbosa, Obras Completas, Vol. XXXIV (1907)-II: A Segunda Conferência da Paz, Rio de Janeiro, MEC, 1966, pp. 65, 163, 252, 327 and 393-395; Ruy Barbosa, Conceptos Modernos del Derecho Internacional, Buenos Aires, Impr. Coni Hermanos, 1916, pp. 28-29 and 47-49; Clovis Bevilaqua, Direito Publico Internacional (A Synthese dos Principios e a Contribuiçâo do Brazil), Vol. I, Rio de Janeiro, Livr. Francisco Alves, 1910, pp. 11-15, 21-26, 90-95, 179-180 and 239-240; Raul Fernandes, Le principe de l'égalité juridique des États dans l'activité internationale de l'après-guerre, Geneva, Impr. A. Kundig, 1921, pp. 18-22 and 33; J.-M. Yepes, "La contribution de l'Amérique Latine au développement du Droit international public et privé", 32 Recueil des Cours de l'Académie de Droit International de La Haye [RCADI] (1930) pp. 731-751; J.-M. Yepes, "Les problèmes fondamentaux du droit des gens en Amérique", 47 RCADI (1934) p. 8; Alejandro Alvarez, Exposé de motifs et Déclaration des grands principes..., op. cit. supra No. (38), pp. 8-9, 13-23 and 51; C. Saavedra Lamas, Por la Paz de las Américas, Buenos Aires, M. Gleizer Ed., 1937, pp. 69-70, 125-126 and 393; Alberto Ulloa, Derecho Internacional Publico, Vol. I, 2nd. ed., Lima, Impr. Torres Aguirre, 1939, pp. 4, 20-21, 29-30, 34, 60, 62 and 74; Alejandro Alvarez, La Reconstruction del Derecho de Gentes —El Nuevo Orden y la Renovacion Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 19-25 and 86-87; Ph. Azevedo, A Justiça Internacional, Rio de Janeiro, MRE, 1949, pp. 24-26, and cf. pp. 9-10; J.-C. Puig, Les principes du Droit international public américain, Paris, Pédone, 1954, p. 39; H. Accioly, Tratado de Direito Internacional Publico, 2nd ed., Vol. I, Rio de Janeiro, IBGE, 1956, pp. 32-40; Alejandro Alvarez, El Nuevo Derecho Internacional en Sus Relaciones con la Vida Actual de los Pueblos, Santiago, Edit. Juridica de Chile, 1961, pp. 155-157, 304 and 356-357; A. Gômez Robledo, Meditacion sobre la Justicia, México, Fondo de Cultura Econômica, 1963, p. 9; R. Fernandes, Nonagésimo Aniversàrio – Conferências e Trabalhos Esparsos, Vol. I, Rio de Janeiro, M.R.E., 1967, pp. 174-175; A. A. Conil Paz, Historia de la Doctrina Drago, Buenos Aires, Abeledo-Perrot, 1975, pp. 125-131;
Jiménez de Aréchaga, "International Law in the Past Third of a Century", 159 Recueil des Cours de l'Académie de Droit International de La Haye (1978) pp. 87 and 111-113; L. A. Podesta Costa and J. M. Ruda, Derecho Internacional Publico, 5th. rev. ed., Vol. I, Buenos Aires, Tip. Ed. Argentina, 1979, pp. 17-18 and 119-139; E. Jiménez de Aréchaga, El Derecho Internacional Contemporaneo, Madrid, Ed. Tecnos, 1980, pp. 107-141; A. A. Cançado Trindade, Principios do Direito Internacional Contemporâneo, Brasilia, Edit. University of Brasilia, 1981, pp. 1-102 and 244-248; Jorge Castaneda, Obras Completas—Vol. I: Naciones Unidas, Mexico, S.R.E./El Colegio de México, 1995, pp. 63-65, 113-125, 459, 509-510, 515, 527-543 and 565-586; [Various Authors,] Andrés Bello y el Derecho (Colloquy of Santiago de Chile of July 1981), Santiago, Edit. Juridica de Chile, 1982, pp. 41-49 and 63-76; D. Uribe Vargas, La Paz es una Trégua - Solution Pacifica de Conflictos Internationales, 3rd ed., Bogota, Universidad Nacional de Colombia, 1999, p. 109; A. A. Cançado Trindade, O Direito International em um Mundo em Transformaçao, Rio de Janeiro, Edit. Renovar, 2002, pp. 91-140 and 863-889 and 1039-1071.
[FN57] Lafayette Rodrigues Pereira, Principios de Direito International, Vols. I-II, Rio de Janeiro, J. Ribeiro dos Santos Ed., 1902-1903, pp. 1 et seq.; A. S. de Bustamante y Sirvén, La II Conferencia de la Paz Reunida en La Haya en 1907, Vol. II, Madrid, Libr. Gen. de v. Suarez, 1908, pp. 133, 137-141, 145-147, 157-159, and cf. also Vol. I, pp. 43, 80-81 and 96; Epitacio Pessôa, Projecto de Codigo de Direito International Publico, Rio de Janeiro, Imprensa Nacional, 1911, pp. 5-323;
F. -J. Urrutia, "La codification du droit international en Amérique", 22 RCADI (1928) pp. 113, 116-117 and 162-163;
Guerrero, La codification du droit international, Paris, Pédone, 1930, pp. 11, 13, 16, 152, 182 and 175; J.-M. Yepes, "La contribution de l'Amérique Latine au développement du Droit international public et privé", 32 RCADI (1930) pp. 714-730 and 753-756; Alejandro Alvarez, "Méthodes de la codification du droit international public – Rapport", in Annuaire de l'Institut de Droit International (1947) pp. 38, 46-47, 50-51, 54, 64 and 69; J.-M. Yepes, Del Congreso de Panama a la Conferencia de Caracas (1826-1954), Caracas, M.R.E., 1955, pp. 143, 177-178, 193 and 203-208; R. J. Alfaro, "The Rights and Duties of States", 97 Recueil des Cours de l'Académie de Droit International de La Haye (1959) pp. 138-139, 145-154, 159 and 167-172; G. E. do Nascimento e Silva, "A Codificaçâo do Direito Internacional", 55/60 Boletim da Sociedade Brasileira de Direito International (1972-1974) pp. 83-84 and 103; R. P. Anand, "Sovereign Equality of States in International Law", 197 RCADI (1986) pp. 73-74; A. A. Cançado Trindade, "The Presence and Participation of Latin America at the II Hague Peace Conference of 1907", in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque du centenaire, 2007 - ed. Yves Daudet), La Haye/Leiden, Académie de Droit International de La Haye/Nijhoff, 2008, pp. 51-84.
[FN58] G. Herczegh, General Principles of Law and the International Legal Order, Budapest, Akadémiai Kiadô, 1969, pp. 9, 36, 42, 69, 90, 120 and 122.
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VI. "General Principles" of international law: scope of application ratione materiae

48. There are, in fact, general principles of law proper to international law in general, and there are principles of Law proper to some domains of International Law, such as, inter alia, International Environmental Law. In our days, international tribunals are called upon to pronounce on cases, for the settlement of which they do need to have recourse to general principles of law, including those which are proper to certain domains of international law. This has often taken place, particularly in the recent case law of, e.g., the ad hoc International Criminal Tribunal for the Former Yugoslavia (mainly period 1998-2005) and the Inter-American Court of Human Rights (mainly period 1997-2006).

49. It may well happen that an international tribunal of universal scope and vocation, such as the International Court of Justice, in pronouncing on cases brought into its cognizance, makes recourse to general principles of law, to settle the cases at issue, without elaborating further on such principles. This has often happened in its practice (cf. supra). The ICJ is entirely free to do so. Yet, this corresponds to one particular conception of the exercise of the international judicial function, which is not the only one which exists.

50. It is my view that it is perfectly warranted, and necessary, for the ICJ, to dwell upon the principles it resorts to, and to elaborate on them, particularly when such principles play an important role in the settlement of the disputes at issue, and when these latter pertain to domains of International Law which are undergoing a remarkable process of evolution in time. This is precisely the case of the present dispute concerning the Pulp Mills, and of the evolving International Environmental Law in our times, there being, in my view, no apparent reason for the Court not to elaborate on the applicable principles.

51. There have been occasions, in other contexts, as already seen, wherein the ICJ paid due regard to general principles, and pointed this out (cf. supra). It is thus all too proper, at this stage, first, to move on to the consideration of the general principles of International Environmental Law that have application in the present case of the Pulp Mills, and, secondly, to turn, then, to the acknowledgement by both contending parties, Argentina and Uruguay, of those principles (in particular the principles of prevention and of precaution) throughout the proceedings of the cas d'espèce.

VII. General principles of international environmental law

52. General principles of law emanate, in my perception, from human conscience, from the universal juridical conscience, which I regard as the ultimate material "source" of all Law. A clear illustration is provided by the gradual acknowledgment, in the last decades, of the principles proper to a domain like that of International Environmental Law (cf. infra) – such as those of prevention and of precaution – as the consciousness has emerged of the pressing need to secure the protection of the environment, given its vulnerability, the risks surrounding everyone, and the harmful consequences of irreparable damages caused to it. The awakening of such consciousness has accounted for the assertion of those principles. This turns my attention to the scope of application of these latter.

53. I find it necessary to develop these reflections in the present Separate Opinion, as, in its Judgment in the present case of the Pulp Mills, the Court did not elaborate on the general principles of International Environmental Law. I would have surely preferred that the Court had done so, as, in my perception, this is what was generally expected from it. Had it done so, as I think it should, it would have contributed to the progressive development of International Law in the present domain of the international protection of the environment. In fact, the contending parties themselves had seen it fit to invoke those general principles, in a distinct way, but both of them significantly did invoke them, in their respective arguments put before the Court. Before summarizing the approaches of the contending parties to those principles, may I briefly review them, in particular the preventive and precautionary principles, followed by that of sustainable development, in addition to inter-generational equity.

1. Principle of prevention

54. With the gradual awakening, along the sixties, half a century ago, of human conscience to the pressing need to secure the protection of the environment, International Environmental Law – as we know it today – began to take shape. Attention was promptly turned to the identification of the general principles to orient or guide the newly-emerging corpus juris. The célèbres United Nations Conferences of Stockholm (1972) and of Rio de Janeiro (1992) became milestones in this evolution. At the time of the former, early doctrinal endeavours had already identified the long-term temporal dimension, and the principle of prevention, as proper to the discipline.

55. That principle was articulated in relation to damage and in face of scientific certainty as to its occurrence; yet, it was conceded that prevention could be exercised in distinct ways, according to the nature of the source of pollution[FN59]. Another landmark in these early endeavours was the 1982 United Nations Charter for Nature (adopted by General Assembly resolution 37/7, of 28 October 1982) – with its great effort in the identification of principles – wherefrom the conception was propounded that

"l'humanité fait partie elle-même de la nature, la civilisation a ses racines dans la nature, toute forme de vie est unique et mérite d'être respectée quelle que soit son utilité pour l'homme. (...) Comme l'homme peut transformer la nature et épuiser ses ressources, il doit maintenir l'équilibre et la qualité de la nature et conserver les ressources naturelles. Il est donc nécessaire de maintenir les processus écologiques et des systèmes essentiels à la subsistance, ainsi que la diversité de formes organiques. La survie même des structures économiques, sociales et politiques de la civilisation et en dernière analyse la sauvegarde de la paix dépendent de la conservation de la nature et de ses ressources"[FN60].

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[FN59] A.-Ch. Kiss, Droit international de l'environnement, Paris, Pédone, 1989, p. 202.
[FN60] Ibid., p. 43, and cf. pp. 39 and 60.
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56. Although International Environmental Law, guided by principles proper to its own domain, such as that of prevention, has emerged and developed only in the last half-century, the awareness of the need to secure the harmony between man and nature is deep-rooted in human thinking, going back in time centuries ago. Thus, the unfinished dialogue Critias, of Plato – who lived approximately between 427-347 b.C. – written shortly after Timaeus[FN61], contains descriptions of an island (associated with the island of Atlantis) which ranked among the most fertile in the world, before having been devastated by many deluges and disappeared in the deep sea.

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[FN61] The two dialogues, Timaeus and fragmentary Critias, belong to the later years of Plato's life.
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57. One of the four persons in the dialogue, Critias himself, describes the harmony between man and nature, the care peasants and artisants (clearly apart from warriors) had with their rich and beautiful lands (110c-111c, 111c-112d), their rivers and lakes and forests and plains, which provided them the means to survive (food, water, and the quality of the ambiance – 114e-115e) – before degeneration took place. Critias's description sounds like a warning as to the need of sustaining peacefully that natural beauty and the harmony between man and nature, and a warning against the surrounding threats and dangers.

58. On his turn, Aristotle (384-322 b.C.), in his Politics (book I), pondered that the modus vivendi of men is combined with nature, which provides them a living from the cultivated fruits of the soil (1256a23-1256b9), and which furnishes food to all those who were born (1258a34-36). In sum, already in his times, Aristotle believed that the fate of men and of their ambiance, - of nature itself – were inseparable. Along the centuries, the ineluctable relationship between man and nature did not pass unnoticed; it captured the attention, not of lawyers, but of thinkers, poets and philosophers. As lucidly narrated by the learned historian Jacob Burckhardt,

"From the time of Homer downwards, the powerful impression made by nature upon man is shown by countless verses and chance expressions. ... By the year 1200, at the height of the Middle Ages, a genuine, hearty enjoyment of the external world was again in existence, and found lively expression in the minstrelsy of different nations, which gives evidence of the sympathy felt with all the simple phenomena of nature . . . The unmistakable proofs of a deepening effect of nature on the human spirit begin with Dante. Not only does he awaken in us by a few vigorous lines the sense of the morning air and the trembling light on the distant ocean, or of the grandeur of the storm-beaten forest, but he makes the ascent of lofty peaks, with the only possible object of enjoying the view - the first man, perhaps, since the days of antiquity who did so."[FN62]

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[FN62] J. Burckhardt, The Civilization of the Renaissance in Italy, N.Y., Barnes & Noble Books, 1992, pp. 178-179.
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59. With the advent of the age of International Environmental Law in the second half of the 20th century (from the sixties onwards), already by the early seventies the principle of prevention was acknowledged, so as to avoid environmental harm in genere, and to prohibit transfrontier environmental harm in particular; the principle of prevention found expression in Principle 21 of the 1972 Stockholm Declaration, and Principles 2 of the 1992 Rio Declaration, and provided support to the general obligations of information, notification and consultation (as foreseen in Principle 19 of the 1992 Rio Declaration)[FN63].

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[FN63] J. Juste Ruiz, Derecho Internacional del Medio Ambiente, Madrid, McGraw-Hill, 1999, pp. 72-73.
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60. One decade earlier, the principle of prevention permeated the World Charter for Nature, adopted by the United Nations General Assembly, on 28 October 1982. And half a decade after the Rio Declaration, the 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, in the same line of thinking, provided that "[w]atercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States" (Article 7 (1)). Yet, prevention alone was to prove not sufficient for the guidance and development of this domain of International Law, turned to environmental protection.

61. As human conscience became gradually aware of the continuing vulnerability of human beings and the environment in face of persisting risks, and of insufficiencies of scientific knowledge to avoid threats and dangers likely to take place, the precautionary principle began to flourish, from the late eighties onwards. It was, however, not to replace prevention, but to add a new dimension to it; as it will be seen later, a series of International Environmental Law instruments were to capture the rationale of the principle of prevention and the precautionary principle together (cf. infra).

2. Precautionary principle

62. We have before us two key elements which account for this evolution, namely, the awareness of the existence or persistence of risks, and the awareness of scientific uncertainties surrounding the issue at stake. These two elements have occupied a central position in the configuration of the precautionary principle. In the light of the principle of prevention, one is facing threat or dangers to the environment, whilst in the light of the precautionary principle, one is rather before likely or potential threats and dangers to the environment. In these distinct circumstances, both principles are intended to guide or orient initiatives to avoid harm, or likely harm, to the environment.

63. Along the years, the precautionary principle has been emerging also in the consideration of contentious cases lodged with this Court, in the form of invocations to it by the contending parties in the course of international legal proceedings. Thus, in the (second) Nuclear Tests case (underground testing, New Zealand v. France), the Court was faced (in the proceedings concerning its Order of 22 September 1995) with New Zealand's contention that, under conventional and customary international law, there was an obligation to conduct an environmental impact assessment before carrying out nuclear tests, and an obligation to provide prior evidence that planned nuclear tests

"will not result in the introduction of such material to [the] environment, in accordance with the 'precautionary principle' very widely accepted in contemporary international law" (I.C.J. Reports 1995, p. 290, para. 5).

In any circumstances – New Zealand insisted – the "precautionary principle" required an environmental impact assessment "as a precondition for undertaking the activities, and to demonstrate that there was no risk associated with them" (ibid., p. 298, para. 35).

64. More than two decades earlier, in the (first) Nuclear Tests case (atmospheric testing, Australia and New Zealand v. France), in an oral argument before the ICJ, of 24 May 1973, advanced in a language which seemed ahead of its time, counsel for New Zealand began by warning that the intensification of nuclear weapons testing in the fifties presented "the dangers of radio-active fall-out to the health of present and future generations", accompanied by a growing awareness of the "grave threat" that the continuation of such situation raised "ultimately to the very survival of mankind"[FN64]. He then invoked the "danger to mankind" and the need "to minimize the risk to health", the need of protection of "the peoples of the area", mankind's hope to secure its own welfare, the growth of "a regional consciousness" of the surrounding risk and of the health hazards affecting "the whole population" and the "rights of peoples"[FN65], and added that

"an activity that is inherently harmful is not made acceptable even by the most stringent precautionary measures"[FN66].

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[FN64] ICJ, Nuclear Tests case (New Zealand v. France) – Pleadings, Oral Arguments, Documents, Vol. II (1973), p. 103.
[FN65] Nuclear Tests case (New Zealand v. France) —Pleadings, Oral Arguments, Documents, Vol. II (1973), pp. 104, 106-107 and 110-111.
[FN66] Ibid, p. 108.
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65. The use of this language in an argument before the Court, as early as 1973, seems to have passed unnoticed even in contemporary expert writing on the subject. Yet, with foresight, it reveals the importance of the awakening of conscience as to the need to resort to precaution, beyond prevention. Finally, in the same statement, counsel for New Zealand, recalling the (then) recently adopted final document of the Stockholm United Nations Conference on the Human Environment (with emphasis on Principle 21), laid emphasis on the "heightened sense of international responsibility for environmental policies", and asserted the existence of "a moral duty" to the "benefit of all mankind", to be complied with, so as to "meet the requirements of natural justice"[FN67].

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[FN67] Ibid., pp. 113-114.
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66. In the more recent Gabcikovo-Nagymaros Project case (Hungary v. Slovakia, Judgment of 25 September 1997), the ICJ took note of Hungary's invocation of the "precautionary principle" (p. 62, para. 97), and recognized that "both Parties agree on the need to take environmental concerns seriously and to take the required precautionary measures, but they fundamentally disagree on the consequences this has for the joint Project" (p. 68, para. 113). The ICJ unfortunately refrained from acknowledging the precautionary principle as such, and from elaborating on the legal implications ensuing therefrom.

67. The Court had a unique opportunity to do so, in the present case of the Pulp Mills, when both contending parties, Uruguay and Argentina, expressly referred to both the preventive principle and the precautionary principle. Yet, the Court, once again, preferred to guard silence on this relevant point. It escapes my comprehension why the ICJ has so far had so much precaution with the precautionary principle. I regret to find that, since 1973, the Court has not displayed more sensitiveness to the invocation of precaution before it, when it comes to protect human beings and their environment, even well before the corresponding precautionary principle began to take shape in contemporary International Environmental Law.

68. Yet, this latter has indeed taken shape, in our days, moved above all by human conscience, the universal juridical conscience, which is, in my view – may I reiterate – the ultimate material "source" of all Law, and of the new jus gentium of our times. Be that as it may, the fact that the Court has not expressly acknowledged the existence of this general principle of International Environmental Law does not mean that it does not exist. There is nowadays an abundant literature on it – which is not my intention to review in this Separate Opinion – but, irrespective of that, one can hardly escape acknowledging the relevance of the consideration of at least its constitutive elements, as I proceed to do now.

(a) Risks

69. The last decades have indeed witnessed a growing awareness of the vulnerability of human beings and of the environment, requiring care and due diligence in face of surrounding risks, incurred into by man himself. That vulnerability has led to the acknowledgement of the need to take initiatives and decisions, even without a thorough knowledge of the relevant factors in a given situation, so as to protect human life and the environment. Prevention envisaged risks, but assumed they were certain. Precaution thus emerged, as an ineluctable principle, to face also uncertain risks, given the uncertainties of life itself, and the intuition of surrounding death.

70. This development had to do not only with the inescapable limitations of human knowledge, but also, beyond that, with human fallibility, and – one has to admit it – with human wickedness. Looking back in anger[FN68], we realize how the recent advances in specialized scientific knowledge have led not only to remarkable achievements, but also to devastating catastrophes, to the detriment of humankind and the environment, as illustrated by the arms race, for example. The XXth century has witnessed an unprecedented growth in scientific knowledge and technology, accompanied tragically by an also unprecedented display of cruelty and destruction.

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[FN68] To paraphrase the renowned theatrical play.
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71. For the first time in human history, human beings became aware that they had acquired the capability to destroy the whole of humankind. In so far as the environment is concerned, the emergence of the precautionary principle brought about the requirement to undertake complete environmental impact assessments, and the obligations of notification and of sharing information with the local population (and, in extreme cases, even with the international community). Moreover, the reckoned need of consideration of alternative courses of action, in face of probable threats or dangers, also contributes to give expression to the precautionary principle, amidst the recognition of the limitations in scientific knowledge on ecosystems.

72. While the principle of prevention (supra) assumed that risks could be objectively assessed, so as to avoid damage, the precautionary principle arose, to face with anticipation, probable threats, surrounded by uncertainties; risks were to be reasonably assessed. In addition, the precautionary principle went beyond the logic – or lack of it – of the homo oeconomicus (of attributing an economic value to everything), as environmental goods are not mere commodities, and risks cannot be assessed by means of cost-benefit techniques only[FN69].

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[FN69] N. de Sadeleer, Environmental Principles – From Political Slogans to Legal Rules, Oxford, University Press, 2002, pp. 91, 127, 164 and 170.
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73. In considering the element of probable risk, proper to the precautionary principle, I have so far detected two related aspects, namely, the growing awareness of the vulnerability of human beings and the environment, and the recognition of the need to take precautionary action, prompted by the probability of irreversible environmental harm. The growth of scientific knowledge came to be appreciated with the awareness of human fallibility. Such aspects were kept in mind in the formulation of the precautionary principle, as asserted in the landmard 1992 Rio de Janeiro Declaration on Environment and Development (Principle 15), in face of the probability of harm. The States' duty to counter environmental hazards was at last reckoned.

(b) Scientific uncertainties

74. The element of risks has been ineluctably linked to the other element of scientific uncertainties. In order to approach this latter, in my view four other aspects are to be considered, in addition to that of the aforementioned knowledge and awareness of human fallibility, namely: (a) the formation and growth of scientific knowledge; (b) the emergence of specialized knowledge; (c) the persisting décalage between knowledge and wisdom; and (d) the humane ends of knowledge. I shall go briefly through them, to the extent they may fulfil the purpose of the present Separate Opinion.

75. It may, first of all, be asked, why has it taken so long for precaution to find its place and be articulated amidst the growth of human knowledge over centuries? After all, around 24 centuries ago it had been reckoned that human knowledge was far too limited (unsurprisingly), and even more scarce was, and is, human wisdom. This latter, in fact, looked alien to humans, as conceded in the Apology of Socrates (399 b.C.):

"I know that I have no wisdom, small or great. ... Accordingly, I went to one who had the reputation of wisdom . ; he was a politician whom I selected for examination - and the result was as follows: When I began to talk to him, I could not help thinking that he was not really wise, although he was thought wise by many, and still wiser by himself; and thereupon I tried to explain to him that he thought himself wise, but was not really wise; and the consequence was that he hated me, and his enmity was shared by several who were present and heard me. ...
... After the politicians, I went to the poets; ... I knew that not by wisdom do poets write poetry, but by a sort of genius and inspiration; . upon the strength of their poetry they believed themselves to be the wisest of men in other things in which they were not wise. ...
At last I went to the artisans. ... They did know many things of which I was ignorant, and in this they certainly were wiser than I was. But I observed that even the good artisans fell into the same error as the poets; - because they were good workmen they thought that they also knew all sorts of high matters, and this defect in them overshadowed their wisdom .
This inquisition has led to my having many enemies of the worst and most dangerous kind ... The truth is, O men of Athens, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."[FN70].

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[FN70] Plato, Apology of Socrates [399 b.C.], 21b-d; 22a,c; 22d; 23a-b.
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76. One is led to imagine that, if experts existed in those times, the times of Socrates, they would most probably have also been consulted, and their views would most likely not have changed Socrates's conclusion at all. The wise message of the Apology of Socrates lies in the warning as to the need to have conscience of one's own limits. This humanist outlook was captured centuries later, in the writings published in the XVIth century of humanists like Erasmus (1465-1536), Rabelais (circa 1488-1553) and Montaigne (1533-1592), among others.

77. In the XVIIth century, modern science (as it became known) had already emerged: the new age of reason was marked by the rise of physical sciences, pari passu with the decline of the medieval conception of knowledge. Later on, in the XVIIIth century – the age of enlightenment (pensée illuministe) – in the same line of concern as that of Socrates, Voltaire (1694-1778) warned, in his Dictionnaire philosophique (1764), as to the uncertainties surrounding human beings (despite scientific advances) and the limits of the human mind (l'esprit humain)12.

78. With the gradual advent of the age of technology and the industrial revolution, science was largely equated with a techno-science, associated with pure technique and the illusion of unlimited material progress or economic growth. This proved disastrous for man and his environment, as recognized only much later, in the second half of the XXth century. But still at the end of the XVIIIth century, when Condorcet, another humanist, professed, in his inspired and moving Esquisse d'un tableau historique des progrès de l'esprit humain (1793), his faith in progress (and in the droits de l'humanité), he had in mind progress not strictly limited to the accumulation of knowledge, but also encompassing the moral improvement of man, that is, progress duly attentive to ethics and values.

79. Regrettably, his philosophy of progress was taken up by thinkers of the XIXth century who, under the new influence of positivism and "modernity", reduced it to material progress or economic growth, moved by a techno-system[FN71]. This reductionist outlook of progress generated problems which seemed soluble only with more progress[FN72]. In this vertiginous spiral, stimulated by the new conception of material progress, man lost sight of ethical values, and acquired, for the first time in human history, the capacity to destroy the whole of humankind (as attested by today's arsenals of weapons of mass destruction). Man and his environment became victims of the putting into practice of this deplorable and distorted vision of material progress, devoid of values. By losing sight of the demands of reason and ethics, man became a serious threat to himself and his environment.

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[FN71] G. H. von Wright, Le mythe du progrès, Paris, L'Arche Éd., 2000, pp. 10-12, 34-37, 42, 61 and 64-65.
[FN72] R. Wright, Breve Histôria do Progresso, Lisboa, Publs. Dom Quixote, 2006, pp. 19-21, 35 and 75, and cf. pp. 90 and 104.
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80. The formation and growth of scientific knowledge generated at first a generalized belief in science, which was to be reckoned, in recent decades, as an illusion. It did not last long enough. Successive man-made disasters began to dissipate the old belief in scientific knowledge and in its assumed capacity even to predict and to avoid likely threats and dangers to human beings and the environment; that old belief gradually yielded to uncertainties, to a recognition of the limitations of scientific knowledge to predict, with some degree of accuracy, those threats and dangers, and to avoid them. Scientific uncertainties gave a strong impetus to the emergence of the precautionary principle.

81. This new awareness, however, faced many obstacles before it at last emerged in our times. Along the XIXth and XXth centuries (from the times of A. Comte onwards), positivism – with its characteristic self-sufficiency – kept on maintaining that the only valid propositions were the ones which were scientifically verifiable; it kept on upholding all knowledge empirically obtained from the method of observation, believing it capable of solving problems indefinitely. Yet, problems it thought were solved, proved not to have been. But the myth of unending progress had already been diffused.

82. The relentless belief in scientific knowledge, professed by positivism, as being capable of solving all problems, had become almost an ideology. Gradually, in all branches of knowledge and everywhere, so-called "experts" began to appear, knowing more and more about less and less. And the general belief flourished that the cultivation of specialized knowledge was the most adequate path to human safety and even happiness. Only in our times – the times of the growth of International Environmental Law – after so much destruction occurred in the XXth century – including man-made destruction – the pressing need has been acknowledged of controlling the uses of scientific knowledge, and of thinking and acting with moderation and care.

83. In so far as the environment was concerned, such awareness has led to the formulation of the principles of prevention, to avoid environmental damage, and of precaution, to take action so as to foresee probable and even long-term harmful consequences to the environment, amidst scientific uncertainties. Given the recurring prevalence of these latter, the epistemology of the precautionary principle is geared to the duty of care, of due diligence. Unlike the positivist belief that science can reduce uncertainties by carrying on further scientific research, its presumption is invariably in support of the conservation of the environment and the protection of public health[FN73], identified with the common good.

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[FN73] N. de Sadeleer, Environmental Principles . . ., op. cit. supra n. (70), pp. 178, 203, 207 and 212.
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84. However, the assertion and acknowledgement of those principles are not the end of the saga. Have human beings really learned all they could from the errors and sufferings of preceding generations? I have my doubts. They have apparently not learned as much as they could. After 24 centuries since the Apology of Socrates, the décalage between knowledge and wisdom remains as vivid as ever. And surrounding threats and dangers have become more formidable than ever, given the incapacity of man to generate knowledge and to utilize it with wisdom. The accumulation of knowledge, and mainly of specialized knowledge, has lately taken place again, in a recurrent way, tragically losing sight of the humane ends of knowledge. From time to time warnings have been expressed as to this dangerous state of affairs, but they seem to have soon been forgotten.

85. Thus, to recall but one example, only half a century ago, in 1960, a learned humanist of the XXth century, Bertrand Russell, pondered:

"There are several factors that contribute to wisdom. Of these I should put first a sense of proportion: the capacity to take account of all the important factors in a problem and to attach to each its due weight. This has become more difficult than it used to be owing to the extent and complexity of the specialized knowledge required of various kinds of technicians. (. ) You study the composition of the atom from a disinterested desire for knowledge, and incidentally place in the hands of powerful lunatics the means of destroying the human race. In such ways the pursuit of knowledge may become harmful unless it is combined with wisdom; and wisdom in the sense of comprehensive vision is not necessarily present in specialists in the pursuit of knowledge.
Comprehensiveness alone, however, is not enough to constitute wisdom. There must be, also, a certain awareness of the ends of human life. (...) The disastrous results of hatred and narrow-mindedness to those who feel them can be pointed out incidentally in the course of giving knowledge. I do not think that knowledge and morals ought to be too much separated. It is true that the kind of specialized knowledge which is required for various kinds of skill has little to do with wisdom. . Even the best technicians should also be good citizens; . I mean citizens of the world and not of this or that sect or nation. With every increase of knowledge and skill, wisdom becomes more necessary, for every such increase augments our capacity for realizing our purposes, and therefore augments our capacity for evil, if our purposes are unwise. The world needs wisdom as it has never needed it before; and if knowledge continues to increase, the world will need wisdom in the future even more than it does now"[FN74].

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[FN74] Bertrand Russell, "Knowledge and Wisdom", in Essays in Philosophy (ed. H. Peterson), N.Y., Pocket Library, 1960 [reprint], pp. 499 and 502.
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86. In the same epoch of this ponderation, another learned thinker of the XXth century, Karl Popper, also grasping the message of the Apology of Socrates, and dwelling upon the growth of scientific knowledge, contended, in his Conjectures and Refutations, that scientific knowledge advances by means of anticipations or conjectures, which are controlled by the critical spirit, that is, by refutations; therefrom we can learn with our own mistakes[FN75]. To him, all sources of knowledge – including the method of observation, the empirical solutions, which positivists continue to defend – are susceptible of sometimes leading us into errors; there are ultimately no sure sources, and the progress of knowledge is essentially a transformation of previous knowledge, and the relevance of discoveries lies generally in "their capacity to modify our own previous theories", with human knowledge remaining only limited (and ignorance unlimited)[FN76].

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[FN75] K. R. Popper, Conjecturas e Refutaçoes – O Progresso do Conhecimento Cientifico, 5th ed., Brasilia, Edit. University of Brasilia, 2008, pp. 31-449.
[FN76] K. R. Popper, Des sources de la connaissance et de l'ignorance, Paris, Éd. Payot & Rivages, 1998 (reed.), pp. 112-113, 133-135, 143, 146 and 149-152.
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87. Not even the accumulated knowledge can be entirely mastered by human beings. Technological progress, leading, for example, to environmental degradation, and being used in modern warfare, has raised serious doubts as to whether scientific knowledge alone can really satisfy all human needs, and has led to the crisis of spiritual values we live in today[FN77]. Be that as it may, the development of scientific specialized knowledge has by no means amounted to growth of human wisdom.

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[FN77] G. H. von Wright, Le mythe du progrès, op. cit. supra n. (73), pp. 65-66, 73, 76 and 83, and cf. pp. 95 and 98.
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88. Behind the uses of knowledge stands another element, namely, State policies, together with all sorts of interests: economic, industrial, technocratic, not excluding competition, with all its consequences. Are pulp mills built nowadays by European industrial enterprises in the Southern Cone of South America, and their technology, an exception to that? I have my doubts. Such industrial and other interests – material interests – rather than being moved by a scientific mind, are those of homo oeconomicus, they rather often utilize all powers and influence they can gather, in order to obtain whatever science can provide them[FN78], for their own purposes (including profits). Pragmatism and utilitarianism, generating risks, should thus not be forgotten or overlooked here.

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[FN78] E. Morin, Science avec conscience, 2nd ed., Paris, Fayard/Seuil, 2003, pp. 8-11, 17, 19, 23, 35 and 38.
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89. It is not at all surprising that, as a result of all that, scientific advances have been surrounded by uncertainties and complexities, also due to the limitations of the human mind and its manifest lack of wisdom. This is the brave new world[FN79] wherein we live today. Precaution is, more than ever, necessary, in face not only of human fallibility, but also of human wickedness. Given the vulnerability of the human kind, the risks surrounding everyone, the insufficiencies of scientific knowledge – surrounded by uncertainties – and the unpredictability and likely irreversibility of probable environmental harms, we cannot prescind from the precautionary principle. This latter has already been forcefully asserted in certain areas of International Environmental Law (such as in atmospheric and marine pollution issues), and it permeates this whole domain of contemporary International Law. It has had an impact in legal philosophy at large, taking necessarily into account ethical values.

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[FN79] To paraphrase a well-known allegory of another lucid thinker of the XXth century.
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90. The precautionary principle, furthermore, discloses, in my perception, the ineluctable inter-temporal dimension, which has been somewhat overlooked by the ICJ in the present Judgment. This dimension is necessarily a long-term one, since the decisions taken by public authorities of today may have an impact in the conditions of living not only of present, but also of future generations. It is a particularly compelling inter-generational ethics, which, at least part of the abundant literature on environmental law issues nowadays recognizes or concedes as being situated in the realm of natural law thinking[FN80]. In my own understanding, it is not possible to conceive the legal order making abstraction of the moral order, just as it is not possible to conceive the advancement of science making abstraction of the ethical order either.

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[FN80] Cf., inter alia, e.g., J. M. MacDonald, "Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management", 26 Ocean Development and International Law (1995) pp. 256-259 and 278; T. O'Riordan and J. Cameron, "The History and Contemporary Significance of the Precautionary Principle", in Interpreting the Precautionary Principle (eds. T. O'Riordan and J. Cameron), London, Earthscan Publs., 1994, pp. 18 and 22; Nagendra Singh, "Sustainable Development as a Principle of International Law", in International Law and Development (eds. P. de Waart, P. Peters and E. Denters), Dordrecht, Nijhoff, 1988, pp. 1 and 4.
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91. Among the great legacies of the thinking of the ancient Greeks is the acknowledgement of the chiaroscuro of human existence, as in the continuous succession of nights and days. With the considerable advancement of specialized knowledge in modern times, that chiaroscuro discloses a new dimension in our times, unknown to the ancient Greeks. Specialized knowledge has shed light on specific points (to the benefit of human beings), in all areas of human knowledge, unknown or insufficiently known before.

92. But it so happens that this focused light is surrounded by dark shadows, as to the impact of the new discoveries upon other areas of human activity, and as to the uses which will be made of those discoveries, which will, in turn, affect directly our modus vivendi and even our cultural identity, our relationship with the outside world. This appears to me as a new, contemporary dimension, of the chiaroscuro of human existence, which clearly conveys the warning that technical and economic progress alone, devoid of ethics, may throw us into greater darkness.

3. The principles of prevention and of precaution together

93. In the domain of environmental protection, just as there are international instruments, as we have seen, that give expression to the principle of prevention[FN81] (supra), there are also those which lean towards the precautionary principle, like, e.g., the 1985 Vienna Convention for the Protection of the Ozone Layer (preamble and Article 2(1), and the 1997 Montreal Protocol on Substances that Deplete the Ozone Layer (preamble), among others. Yet, the aforementioned 1985 Vienna Convention for the Protection of the Ozone Layer determines also prevention, besides precaution (Article 2 (2) (b)). References to both principles, together, are also found, at regional level, e.g., in the 1991 OAU Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Article 4 (3) (f)), in the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention, Article 2 (2) (a)), and in the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Article 3 (1) and (2)).

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[FN81] The aforementioned United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, providing for prevention, was the object of an exchange of views between the contending parties in the present case of the Pulp Mills; cf. Counter-Memorial of Uruguay, para. 4.67, followed by the reply of Argentina, paras. 4.43-4.45, and the Rejoinder of Uruguay, para. 5.53.
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94. In fact, some of the environmental law Conventions referred to in the file of the present case of the Pulp Mills give expression to both the principle of prevention and the precautionary principle. It is the case, e.g., of the 1992 Convention on Biological Diversity, which reflects the principle of prevention (preamble and Article 3) as well as the precautionary principle (preamble), and of its 2000 Cartagena Protocol on Biosafety (preamble and Articles 2 and 4). It is also the case of the 2001 Convention on Persistent Organic Pollutants (POPs Convention), which invokes both prevention (preamble) and precaution (preamble and Article 1).

95. Other examples, to the same effect, are afforded by the 1992 United Nations Framework Convention on Climate Change (preamble and Article 3 (3)), and the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change (preamble). These are just a few illustrations, not intended, of course, to be exhaustive. They display, however, the intended linkage between preventive and precautionary measures, so as to enhance environmental protection. The two principles, far from excluding each other, serve their purposes together. The phraseology whereby they are given expression is not uniform, but the rationale of one and the other is clearly identifiable.

96. May I only add that the precautionary principle, in my view, is not to be equated with over-regulation, but more properly with reasonable assessment in face of probable risks and scientific uncertainties (supra). This may take the form of carrying out complete environmental impact assessments, and of undertaking further studies on the environmental issues at stake, as well as careful environmental risk analysis, before the issuance of authorizations. At the end, it has to do with common sense, seemingly the least common of all senses. This also brings to the fore the objective character of environmental obligations, which I shall consider later on (cf. infra).

VIII. The acknowledgement by the contending Parties of the principles of prevention and of precaution

97. In effect, as already pointed out, in the present case of the Pulp Mills (Argentina v. Uruguay) both the complainant and the respondent States invoked the aforementioned general principles of International Environmental Law. This is hardly surprising (being in the best tradition of the international legal thinking in Latin America), and it promptly brings to the fore – for the consideration of the obligations under the 1975 Statute of the River Uruguay – the general rule of treaty interpretation, set forth in Article 31 the 1969 Vienna Convention on the Law of Treaties. The constitutive elements of that general rule, enunciated in Article 31 (1) – namely, the text (ordinary meaning of the terms), the context, and the object and purpose of the treaty – are those which currently more often appear in the interpretation of treaties ; such elements are set forth jointly in the same formulation, thus pointing out the unity of the process of treaty interpretation.

98. Article 31 (2) of the 1969 Vienna Convention indicates the elements comprised by the context of a treaty, while Article 31 (3) adds further elements to be taken into account, together with the context; amongst such additional elements, Article 31 (3) refers to "any relevant rules of international law applicable in the relations between the parties". In the present case, if any of such rules are found in other (multilateral) treaties ratified or adhered to by the two parties at issue, they can be taken into account as an element of interpretation, for the purposes of application of the 1975 Statute of the River Uruguay[FN82].

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[FN82] Article 60 of which provides the basis of jurisdiction for the ICJ.
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99. Yet, treaties are living instruments, and the development of international law itself may have effect upon the application of the treaty at issue; such treaty ought then to be considered in the light of international law at the moment its interpretation is called for[FN83]. General principles of law are thus to be taken into account, and it is significant that the contending parties in the present case, pertaining to International Environmental Law, do not have any basic disagreement on this particular point, even if their perception or interpretation of one particular principle may not coincide. It is further significant, in this respect, that both Argentina and Uruguay refer, for example, to the principles of prevention and of precaution, as well as to the concept of sustainable development (which permeates the whole of environmental protection), though their reading of such principles and concept by the two parties in the context of the present case is not the same.

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[FN83] M. K. Yasseen, "L'interprétation des traités d'après la Convention de Vienne sur le droit des traités", 151 Recueil des Cours de l'Académie de Droit International de La Haye (1976) p. 62, and cf. p. 59.
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1. Principle of prevention

100. As to the principle of prevention, both parties referred to its formulation, embodied in Principle 21 of the 1972 Stockholm Declaration on the Human Environment, i.e., the principle of prevention as pertaining to the responsibility incumbent upon States to ensure that activities performed within their jurisdiction or control do not cause damage to the environment of other States (also Principle 2 of the Rio Declaration on Environment and Development) or of areas beyond the limits of national jurisdiction[FN84]. Moreover, as to its legal status, both parties agreed on the customary nature of the principle of prevention[FN85]; they diverged, however, as to the scope of the principle in the present case.

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[FN84] Cf., e.g., Memorial of Argentina, para. 3.189, and Rejoinder of Uruguay, para. 5.52.
[FN85] Cf. ibid, paras. 3.189 and 5.52, respectively.
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101. In its Memorial, Argentina identified the principle of prevention as part of the law applicable to the present dispute under the 1975 Statute (para. 3.188). Uruguay, on its part, claimed, in its Counter-Memorial, that the principle of prevention under International Law – and as embodied in the 1975 Statute – imposes in its view an obligation of conduct (due diligence) rather than an obligation of result (requiring full avoidance of pollution) (paras. 4.68-4.69); it added that prevention, in casu, ought to be assessed by reference to Article 7 (1) of the United Nations Convention on International Watercourses, which provides that States shall "take all appropriate measures to prevent the causing of significant harm to other watercourse States" (para. 4.67).

102. In its Reply, Argentina dismissed Uruguay's narrower interpretation of Article 41 of the Statute and claimed that "[t]he obligation to prevent significant damage to the other Party, to the quality of the waters and to the ecosystem of the River Uruguay and the areas affected by it has its own particular features", to be assessed in light of the "regime for overall protection" established by the 1975 Statute (para. 4.45). Uruguay, in turn, in its rejoinder, retorted that "it is not plausible to suggest that anything more can be read into the Statute than was subsequently codified by the ILC in the Watercourses Convention", as the object and purpose of Articles 36, 41, 42 and 56 (a) (4) of the 1975 Statute was "to give effect to the obligation [of due diligence] to prevent transboundary damage in the Uruguay River" (para. 5.53). In sum, Argentina gave a broader interpretation to the principle of prevention, though both Argentina and Uruguay significantly relied upon such principle, recognizing its relevance in the cas d'espèce.

2. Precautionary principle

103. Moving on to the precautionary principle, once again both contending parties referred to this principle as well, and based their distinct arguments in this respect, to start with, on its formulation as embodied in the 1992 Rio Declaration on Environment and Development (Principle 15), namely:

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation"[FN86].
In its Memorial, Argentina argued that "the 1975 Statute must be interpreted and applied in the light of the precautionary principle as a rule of international law" (para. 5.13). Furthermore, counsel for Argentina expressed the hope that the Court would in the present case "declare Principle 15 to reflect customary law"[FN87].

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[FN86] Cf., e.g., Memorial of Argentina, para. 3.195; and Counter-Memorial of Uruguay, para. 4.80.
[FN87] ICJ, CR 2009/14, p. 58, para. 8.
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104. To Uruguay, in turn, the precautionary principle is "a 'soft law' principle", which ought to be taken into account when interpreting treaties in accordance with Article 31 (3) (c) of the Vienna Convention on the Law of Treaties. Even so – Uruguay added – that principle "does not appear to meet the requirements of customary international law", and international case law has not yet treated it as "an obligatory rule of customary law"[FN88]. In any case, in its view, Argentina "failed to identify any significant risk" in respect of which measures were to be taken pursuant to the precautionary principle[FN89].

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[FN88] Rejoinder of Uruguay, para. 5.66.
[FN89] Ibid., para. 5.67.
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105. As to the applicability of the principle, Argentina, on its part, submitted in its Memorial that the precautionary principle should guide the interpretation of the 1975 Statute (para. 5.13). The principle would be applicable in the cas d'espèce as a result of the remaining areas of "scientific uncertainty" (as to the environmental impact of the Botnia plant) and the corresponding "risk" of serious or irreversible damage. Areas of scientific uncertainty would include "the implications of reverse flow for the concentration of pollutants, wind direction, climate change and the likely impact of the presence of pollutants on the fish in the river" (paras. 5.17-5.18).

106. Uruguay, in turn, reckoned, in its rejoinder, that the principle at issue played a role in the interpretation of certain environmental law treaties (para. 5.66), but argued that it was not relevant in the context of the present dispute, first, because there was no scientific uncertainty in the operation of pulp mills, and also, because risks associated with their operation "are monitored comprehensively and can be empirically tested" so that any uncertainties be removed or dealt with (para. 5.58). Argentina, on its part, recalled, in its Memorial, that, pursuant to Principle 15 of the 1992 Rio Declaration (supra), "[l]e principe de précaution est applicable à la protection de l'environnement dès lors qu'il existe un 'risque de dommages graves ou irréversibles'" (para. 5.14). Uruguay retorted, in its Counter-Memorial, that there was in its view no reason to believe that the pulp mills might cause "serious or irreversible harm" to the environment, and, in particular, to the water quality of the River Uruguay (para. 4.81).

107. Last but not least, as to the content of the precautionary principle, Argentina sustained in its Memorial that, within the framework of the 1975 Statute, such principle means that "the Parties to the 1975 Statute are required to notify each other of all the probable environmental consequences of their actions which may cause serious or irreversible damage before such actions are authorized or undertaken" (para. 5.14). Precaution would thus require the Parties to the 1975 Statute "to comply with their obligations of notification and consultation before authorizing the construction" of pulp mills (para. 5.14) and – it added in its Reply – to take account of "the risks of harm in the design, preparation and implementation of any project or "form of use" relating to the River Uruguay and the areas affected by it" (para. 4.54). Argentina, thus, did not agree with Uruguay's view that the principle at issue would only apply in case of risks of "serious or irreversible harm" (cf. supra).

108. Argentina's claim on the basis of the precautionary principle was thus twofold: (a) it was first linked to its general allegation that Uruguay violated the procedural obligations laid down in the 1975 Statute, especially by commencing construction and operation of the mill before having informed Argentina of all the "probable environmental consequences" of actions which might cause environmental harm[FN90]; and (b) the precautionary principle, in its view, required Uruguay not to authorize the construction and operation of the mill before having conducted comprehensive studies on the river's capacity to dispel pollutants[FN91].

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[FN90] Reply of Argentina, paras. 4.55-4.56.
[FN91] Memorial of Argentina, para. 7.128.
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109. In the oral proceedings, counsel for Argentina invited the ICJ to apply the principle, in view of "the fact that Uruguay, faced with Argentina's claims in 2004 and 2005 and 2006, as to the limited capacity of the river to cope with the intended new pollutants, should have postponed its authorization until it had a good basis for concluding that the river could effectively disperse of these pollutents" – bearing in mind that, in the present case, what precaution meant was "further studies, complete assessments", rather than "acting on the basis of unfounded assumptions about the flow of the river"[FN92]. In addition, counsel for Argentina argued that the risks posed by the Botnia mill ha[d] not been controlled"[FN93].

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[FN92] ICJ, CR 2009/14, p. 58, para. 8; and cf. also Memorial of Argentina, para. 7.128.
[FN93] ICJ, CR 2009/12, p. 71, para. 29.
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110. Uruguay, in its turn, submitted, in its Counter-Memorial, that it would have complied with the precautionary principle "if it were applicable" to the present dispute. The principle at issue, in the terms of the 1992 Rio Declaration, requires States "not to use scientific uncertainty to postpone 'cost-effective measures to prevent environmental degradation'" (para. 4.82); that much Uruguay would have accomplished. Yet – Uruguay added – Argentina misinterpreted the precautionary principle by suggesting that it required "measures that address risks that are remote, unlikely to result in significant harm, or purely hypothetical" (para. 4.83). Such an interpretation would, in its view, be contradicted by "the very reference to 'cost-effective measures' in Principle 15" of the Rio Declaration. Moreover, in Uruguay's view, States only have a responsibility to act on the basis of the precautionary principle when there is "some objective scientific basis for predicting the likelihood of significant harmful effects, some 'reason to believe' or 'reasonable grounds for concern'" (para. 4.83); Argentina seemed – to Uruguay – not to have presented any "significant or credible evidence" in this respect, nothing that would amount to "serious or irreversible damage"[FN94].

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[FN94] Rejoinder of Uruguay, para. 5.59.
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111. Uruguay further added, in its rejoinder, that Argentina misconstrued "the role of the precautionary principle in relation to uncertainty and risk", in having suggested that "the more unlikely a risk the more uncertain it becomes and thus the greater the role for the precautionary principle" (para. 5.61); the principle at issue, in Uruguay's view, can only find application when there is some evidence that the risk exists (para. 5.61). In sum, according to Uruguay, "[t]he real issue is not whether environmental risk has been eliminated, but whether it has been properly managed and minimized to the fullest extent possible using cost-effective measures" (para. 5.62); having provided evidence that it had taken "all the measures that are reasonable and necessary to counter the Botnia plant's actual potential – however small – for serious adverse effects on the river in the real world, then there remains no basis for suggesting that the precautionary principle has any further role to play" (para. 5.61).

112. From the exchange of views above, between Argentina and Uruguay, it so results that there does not emerge therefrom a clear distinction between a general principle and customary law, as formal "sources" of the applicable law in the cas d'espèce. Yet, it appears significant to me that Uruguay, even though arguing that constitutive elements of the principle at issue were not in its view consubstantiated in the present case, never questioned or denied the existence or material content of the principle concerned. In sum, the existence itself of the principles of prevention and of precaution, general principles of law proper to International Environmental Law, was admitted and acknowledged by the contending parties themselves, Uruguay and Argentina

Only the ICJ did not acknowledge, nor affirmed, the existence of those principles, nor elaborated on them, thus missing a unique occasion for their consolidation in the present domain of contemporary International Law. The fact that the Court's Judgment silenced on them does not mean that those principles, of prevention and of precaution, do not exist. They do exist and apply, and are, in my view, of the utmost important, as part of the jus necessarium. We can hardly speak of International Environmental Law nowadays without those general principles. The Court had a unique occasion, in the circumstances of the case of the Pulp Mills, to assert the applicability of the preventive as well as the precautionary principles; it unfortunately preferred not to do so, for reasons which go beyond, and escape, my comprehension.

IX. The long-term temporal dimension: inter-generational equity

May I move on to inter-generational equity. The long-term temporal dimension marks its presence, in a notorious way, in the domain of environmental protection. The concern for the prevalence of the element of conservation (over the simple exploitation of natural resources) reflects a cultural manifestation of the integration of the human being with nature and the world wherein he or she lives. Such understanding is, in my view, projected both in space and in time, as human beings relate themselves, in the space, with the natural system of which they form part (and ought to treat with diligence and care), and, in time, with other generations (past and future)[FN95], in respect of which they have obligations.

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[FN95] Future generations promptly began to attract the attention of the contemporary doctrine of international law: cf., e.g., A.-Ch. Kiss, "La notion de patrimoine commun de l'humanité", 175 Recueil des Cours de l'Académie de Droit International de La Haye (1982) pp. 109-253; E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, Tokyo/Dobbs Ferry N.Y., United Nations University/Transnational Publs., 1989, pp. 1-351; A.-Ch. Kiss, "The Rights and Interests of Future Generations and the Precautionary Principle", in The Precautionary Principle and International Law – The Challenge of Implementation (eds. D. Freestone and E. Hey), The Hague, Kluwer, 1996, pp. 19-28; [Various Authors,] Future Generations and International Law (eds. E. Agius and S. Busuttil et alii), London, Earthscan, 1998, pp. 3-197; [Various Authors,] Human Rights: New Dimensions and Challenges (ed. J. Symonides), Paris/Aldershot, UNESCO/Dartmouth, 1998, pp. 1-153; [Various Authors,] Handbook of Intergenerational Justice (ed. J.C. Tremmel), Cheltenham, E. Elgar Publ., 2006, pp. 23-332.
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113. The temporal dimension, so noticeable in the field of environmental protection, is likewise present in other domains of international law (e.g., Law of Treaties, Peaceful Settlement of International Disputes, International Economic Law, Law of the Sea, Law of Outer Space, State Succession, among others). The notion of time, the element of foreseeability, inhere in legal science as such. The predominantly preventive (and precautionary) character of the normative corpus on environmental protection, stressed time and time again, is also present in the field of human rights protection.

114. Its incidence can be detected at distinct stages or levels, starting with the travaux préparatoires, the underlying conceptions and the adopted texts of some human rights instruments[FN96]. The incidence of the temporal dimension can also be detected in the "evolutionary" interpretation of human rights treaties (which has ensured that they remain living instruments), as well as in their application (as exemplified by international case law, under certain human rights treaties, bringing to the fore the notion of potential or prospective victims, i.e., victims claiming a valid potential personal interest thereunder, thus enhancing the condition of individual applicants).

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[FN96] E.g., the three Conventions – the Inter-American, the United Nations and the European – against Torture, of an essentially preventive character; the 1948 Convention against Genocide, the 1973 Convention against Apartheid, besides international instruments turned to the prevention of discrimination of distinct kinds. The temporal dimension is further present in international refugee law (e.g., the elements for the very definition of "refugee" under the 1951 Convention and the 1967 Protocol on the Status of Refugees, namely, the well-founded fear of persecution, the threats or risks of persecutions – besides in practice the United Nations "early warning" efforts of prevention or forecasting of refugee flows).
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115. In fact, the incidence of the temporal dimension can be detected not only in the interpretation and application of norms of protection of the human person but also in the conditions of the exercise of guaranteed rights (as in, e.g., public emergencies); and it can be detected in the safeguard of all rights, including the right to development and the right to a healthy environment, - extending in time. Here, the evolving jurisprudence (e.g., on the aforementioned notion of potential victims, or else on the duty of prevention of violations of human rights or of environmental harm) may serve of inspiration for the progressive development of International Law in distinct domains of protection (of the human person as well as of the environment).

116. In fact, concern with future generations underlies some environmental law conventions[FN97]. In addition, in the same line of reasoning, the 1997 UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations, after invoking, inter alia, the 1948 Universal Declaration of Human Rights and the two 1966 United Nations Covenants on Human Rights, recalls the responsibilities of the present generations to ensure that "the needs and interests of present and future generations are fully safeguarded" (Article 1, and preamble). The 1997 Declaration added, inter alia, that "the present generations should strive to ensure the maintenance and perpetuation of humankind with due respect for the dignity of the human person" (Article 3). Almost two decades earlier, the United Nations General Assembly adopted, on 30 October 1980, its resolution proclaiming "the historical responsibility of States for the preservation of nature for present and future generations" (para. 1); it further called upon States, in "the interests of present and future generations", to take "measures . . . necessary for preserving nature" (para. 3).

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[FN97] E.g., the 1992 United Nations Framework Convention on Climate Change, the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change, the 1985 Vienna Convention for the Protection of the Ozone Layer, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, among others.
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117. In the same year of the 1997 UNESCO Declaration, in the Gabcikovo-Nagymaros Project case (Judgment of 25 September 1997), the ICJ acknowledged the incidence of the time (long-term temporal) dimension, in referring to "present and future generations" (the long-term perspective), and to the "concept of sustainable development" (para. !!); yet, the Court preferred not to dwell further upon it. After over a decade, it seemed to me that the occasion had come to do so, in the framework of the present case of the Pulp Mills. It was indeed high time for that, but, to my disappointment, the Court's present Judgment preferred to guard silence on this particular issue.

120. May I recall that the subject at issue was originally taken up by the Advisory Committee to the United Nations University (UNU) on a project on the matter, in early 1988, so as to provide an innovative response to rising and growing concerns over the depletion of natural resources and the degradation of environmental quality and the recognition of the need to conserve the natural and cultural heritage (at all levels, national, regional and international; and governmental as well as non-governmental). The Advisory Committee, composed of Professors from distinct continents[FN98], met in Goa, India[FN99], and issued, on 15 February 1988, a final document titled "Goa Guidelines on Intergenerational Equity"[FN100], which stated:

"One innovative response to these concerns is represented by the present project which attempts to introduce for the first time in a systematic and comprehensive manner, a long term temporal dimension into international law as a complement to the traditional spatial dimension.
This temporal dimension is articulated through the formulation of the theory of 'intergenerational equity'; all members of each generation of human beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations. As a central point of this theory the right of each generation to benefit from this natural and cultural heritage is inseparably coupled with the obligation to use this heritage in such a manner that it can be passed on to future generations in no worse condition that it was received from past generations. This requires conservation and, as appropriate, enhancement of the quality and of the diversity of this heritage. The conservation of cultural diversity is as important as the conservation of environmental diversity to ensure options for future generations.
Specifically, the principle of intergenerational equity requires conserving the diversity and the quality of biological resources, of renewable resources such as forests, water and soils which form an integrated system, as well as of our knowledge of natural and cultural systems. The principle requires that we avoid actions with harmful and irreversible consequences for our natural and cultural heritage . . . without unduly shifting the costs to coming generations.
The principles of equity governing the relationship between generations . . . pertain to valued interests of past, present and future generations, covering natural and cultural resources . . There is a complementarity between recognized human rights and the proposed intergenerational rights."[FN101]

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[FN98] Namely, Professors E. Brown Weiss, A. A. Cançado Trindade, A.-Ch. Kiss, R. S. Pathak, Lai Peng Cheng, and E. W. Ploman.
[FN99] In the meeting held in Goa, India, convened by the United Nations University (UNU), the members of the UNU Advisory Committee acted in their own personal capacity.
[FN100] These Guidelines, adopted on 15 February 1988, were the outcome of prolonged discussions, which formed part by a major study sponsored by the UNU. It is not my intention to recall, in the present Separate Opinion, the points raised in those discussions, annotated in the unpublished UNU dossiers and working documents, on file with me since February 1988.
[FN101] The full text of the "Goa Guidelines on Intergenerational Equity" is reproduced in Annexes to the two following books, whose authors participated in the elaboration of the document: E. Brown Weiss, in Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, op. cit. supra n. (95), App. A, pp. 293-295; A. A. Cançado Trindade, Direitos Humanos e Meio Ambiente: Paralelo dos Sistemas de Proteçao International, Porto Alegre/Brazil, S. A. Fabris Ed., 1993, Ann. IX, pp. 296-298.
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121. And the aforementioned UNU document moved on to propose strategies to implement inter-generational rights and obligations. From then onwards, the first studies on this specific topic of inter-generational equity, in the framework of the conceptual universe of International Environmental Law, began to flourish[FN102]. From the late eighties onwards, inter-generational equity has been articulated amidst the growing awareness of the vulnerability of the environment, of the threat and gravity of sudden and global changes, and, ultimately, of one's own mortality.

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[FN102] Cf., inter alia, note (98), supra.
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122. The need has thus been keenly felt to give clear expression to inter-generational equity, so as to fulfil the pressing need to assert and safeguard the rights of present as well as future generations, pursuant to – in my perception – an essentially anthropocentric outlook. Here, in the face of likely risks and threats, the precautionary principle once again comes into play. Nowadays, in 2010, it can hardly be doubted that the acknowledgement of inter-generational equity forms part of conventional wisdom in International Environmental Law.

123. It is not surprising that, in the course of the proceedings before the ICJ in the present case of the Pulp Mills (Argentina v. Uruguay), inter-generational equity has significantly been kept in mind by both contending parties, Uruguay and Argentina, in their arguments presented to the Court in the written and oral phases. Argentina, for example, asserted in its oral arguments that "[u]ne application effective des principes de prévention et de précaution par l'Uruguay aurait permis d'appréhender les risques de dommages graves pour les générations présentes et futures"[FN103]. Uruguay, in its pleadings, maintained that sustainable development is "a matter of inter-generational equity, requiring that economic development proceed in a manner that integrates protection of the environment, which is the human life-support system on which both present and future generations depend"[FN104].

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[FN103] ICJ, CR 2009/20, p. 35.
[FN104] ICJ, CR 2009/17, p. 57, para. 30.
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124. Inter-generational equity thus came to the fore in connection with the acknowledgement, by both parties, of the "principle of sustainable development", which, in their views, played a role in the interpretation and application of the 1975 Statute (cf. infra), displaying concern for seeking to secure the welfare not only of present but also of future generations. In this respect, in approaching the "continuing obligations" of "monitoring" in the present Judgment (para. 266), the Court should have expressly linked this important point to inter-generational equity. As it did not, it unnecessarily and unfortunately deprived its own reasoning of the long-term temporal dimension, so noticeably present in the domain of environmental protection.

125. May I add another aspect, to which I attach particular importance, in respect of the long-term temporal dimension proper to inter-generational equity. In my own perception, the message of solidarity in time – conveyed by inter-generational equity – projects itself both ways, into the future and the past, encompassing future as well as past generations (these latter, in so far as, e.g., the preservation of cultural identity is concerned). In this connection, in the leading case of the Community Mayagna (Sumo) Awas Tingni, concerning Nicaragua, the members of the indigenous community at issue successfully challenged, before the Inter-American Court of Human Rights (IACtHR), a governmental concession to an industry for wood exploitation in their communal lands (which had not yet demarcated), causing environmental harm and disturbing their modus vivendi.

126. In the memorable public hearings before the IACtHR of 16 to 18 November 2000, members of the community concerned[FN105] stressed the importance they attached to their communal lands, not only for their own subsistence, but also for their "cultural, religious and family development". The hills of their lands were "sacred" to them, being the place where they rendered tribute and respect to their dead. Their lands – they insisted – belonged to them, as much as they belonged to their lands. Theirs was not the language of the homo oeconomicus of "modernity" and "post-modernity". Not at all. Preservation of their harmony with their natural environment was of the utmost importance to them.

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[FN105] As recalled by the IACtHR's Judgment, of 31 August 2001 (merits), para. 83.
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127. The members of the Mayagna community did not believe in globalization, nor in privatizations, nor were they after material gains. They had their own awareness of living in time and space. They cared about the future as much as about the past. And to them, living in harmony with their natural environment was priceless, and absolutely necessary, it gave meaning to their lives. Theirs was the logic of homo sapiens, they were aware of their own limitations, and wanted to keep on living within their own possibilities. In doing so, they never changed the ends for the means, as "moderns" and "post-moderns" tend to do.

128. The IACtHR's Judgment (merits) of 31 August 2001 in the Community Mayagna (Sumo) Awas Tingni case – which forms today part of the history of the international protection of human rights and of the environment in Latin America – extended protection to the right to communal property of their lands to the members of the whole indigenous community concerned, and determined the delimitation, demarcation and issuing of title to the lands of the community, to be undertaken in conformity with its customary law, its uses and habits. In reaching this significant decision, the IACtHR took into account the fact that

"among the indigenous persons there exists a communitarian tradition about a communal form of the collective property of the land, in the sense that the ownership of this latter is not centred in an individual but rather in the group and his community. (...) To the indigenous communities the relationship with the land is not merely a question of possession and production but rather a material and spiritual element that they ought to enjoy fully, so as to preserve their cultural legacy and transmit it to future generations." (Para. 149.)

129. The IACtHR's decision upheld the indigenous cosmovision, with attention to due diligence and to cultural diversity. Half a decade after the leading case of the Community Mayagna (Sumo) Awas Tingni, the IACtHR was faced with two new cases wherein, as a result of State-sponsored commercialization of their lands in the past, the members of two indigenous communities were forcefully displaced out of them, having been driven into a situation of great vulnerability, social marginalization and abandonment at the border of a road; the IACtHR's decisions in the cases of the Indigenous Community Yakye Axa (of 6 February 2006) and of the Indigenous Community Sawhoyamaxa (of 29 March 2006), both concerning Paraguay, determined the devolution of the communal or ancestral lands to the members of those two Communities, so as to secure the survival of their cultural identity in their natural habitat.

130. The positive attitude of procedural collaboration displayed by the respondent States in those three cases led to their peaceful settlement. In so far as the preservation of cultural identity is concerned (inter-generational solidarity, bearing in mind future as well as past generations), in my Separate Opinion in the case of the Indigenous Community Sawhoyamaxa, I saw it fit to ponder that

"The concept of culture, - originated from the Roman 'colere', meaning to cultivate, to take into account, to care and preserve, - manifested itself, originally, in agriculture (the care with the land). With Cicero, the concept came to be used for questions of the spirit and of the soul (cultura animi)[FN106]. With the passing of time, it came to be associated with humanism, with the attitude of preserving and taking care of the things of the world, including those of the past[FN107]. The peoples - the human beings in their social milieu - develop and preserve their cultures to understand, and to relate with, the outside world, in face of the mystery of life. Hence the importance of cultural identity, as a component or aggregate of the fundamental right to life itself." (Para. 4.)

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[FN106] H. Arendt, Between Past and Future, N.Y., Penguin, 1993 [reprint], pp. 211-213.
[FN107] Ibid, pp. 225-226.
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131. In other cases, of great cultural density, brought before the IACtHR, the same spirit of solidarity in time, projecting itself onto future as well as past generations, was duly valued by the Court – as in its Judgment on reparations in the impressive case of Bamaca Velasquez, of 22 February 2002, concerning Guatemala in the light of the wealth of the Maya culture – so as to secure the fulfilment of the spiritual needs of descendants and the respect for the legacy of predecessors[FN108]. This is – as I have been insisting, in another international jurisdiction, since mid-nineties – one of the many illustrations of the historical process of humanization of contemporary International Law, which nowadays covers the whole of its corpus juris.

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[FN108] In that Judgment on reparations in the Bamaca Velasquez case, the very first resolutory point of the disposif ordered the identification of the mortal remains of the direct victim, their exhumation in the presence of his widow and relatives, and the rendering of his mortal remains to his widow and relatives. In my Separate Opinion, I saw it fit to dwell upon four specific aspects pertaining to the Court's decision, namely: (a) the time, the living law, and the dead; (b) the projection of human suffering in time; (c) the passing of time, and the repercussion of the solidarity between the living and the dead in the Law; and (d) the precariousness of the human condition and the universal human rights (paras. 1-26).
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X. The underlying temporal dimension: sustainable development

1. The formulation and the implications of sustainable development

132. The temporal dimension underlies likewise sustainable development, which, ever since propounded by the 1987 Brundtland Commission report as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs"[FN109], has come to be regarded as encompassing the fostering of economic growth, the eradication of poverty and the satisfaction of basic human needs (such as those pertaining to health, nutrition, housing, education)[110]. Sustainable development came to be perceived, furthermore, as a link between the right to a healthy environment and the right to development; environmental and developmental considerations came jointly to dwell upon the issues of elimination of poverty and satisfaction of basic human needs. As the whole matter came to be addressed by both the 1992 Rio Conference on Environment and Development (UNCED) and the 1993 United Nations II World Conference on Human Rights (held in Vienna), it became clear that human beings remain at the centre of concerns for sustainable development[FN111].

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[FN109] Cf. World Commission on Environment and Development, Our Common Future, Oxford, University Press, 1987, pp. 75-90, 40, 43-66 and 8-9.
[FN110] UNEP, Beijing Symposium on Developing Countries and International Environmental Law (August 1991) – Final Report, Beijing, UNEP/Ministry of Foreign Affairs of China, 1992, pp. 1-8 (co-rapporteurs A. A. Cançado Trindade and Ajai Malhotra).
[FN111] A. A. Cançado Trindade, "Relations between Sustainable Development and Economic, Social and Cultural Rights: Recent Developments", in International Legal Issues Arising under the United Nations Decade of International Law (eds. N. Al-Nauimi and R. Meese), The Hague, Kluwer, 1995, pp. 1051-1052, 1056, 1065, 1068 and 1075-1076.
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133. The 1992 Rio Declaration on Environment and Development gave considerable projection to the formulation of sustainable development turned to the fulfilment of the necessities of present and future generations[FN112] (Principle 3), whilst the 1993 Vienna Declaration and Programme of Action focused on sustainable development in relation to distinct aspects of International Human Rights Law (Part I, para. 27), also bearing in mind the satisfaction of current and future needs of protection (Part II, para. 17). Sustainable development disclosed an ineluctable temporal dimension, in bringing to the fore present and future generations altogether.

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[FN112] Cf., for a general overview, on the eve of UNCED, [Various Authors,] Human Rights, Sustainable Development and Environment/Derechos Humanos, Desarrollo Sustentable y Medio Ambiente/Direitos Humanos, Desenvolvimento Sustentavel e Meio Ambiente (Proceedings of the Brasilia Seminar of March 1992 – ed. A. A. Cançado Trindade), 2nd ed., Brasilia/San José of Costa Rica, BID/IIHR, 1995, pp. 1-405 (in particular, interventions by E. Brown Weiss, A. A. Cançado Trindade, S. McCaffrey, A.-Ch. Kiss, G. Handl and D. Shelton).
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134. The 1993 Vienna Declaration and Programme of Action stated that "the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations" (para. 11). The major concern of that final document of the 1993 Vienna Conference, as well as of Agenda 21 of the 1992 Rio Conference – as I well recall from their travaux préparatoires, as well as their adoption at the two United Nations World Conferences – was directed towards the improvement of the socio-economic conditions of living of the population, and in particular of its vulnerable groups[FN113], so as to meet their special needs of protection. This is reflected in the corpus of those two final documents of the two landmark United Nations World Conferences of 1992 and 1993.

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[FN113] Such as, among others, those formed by the poorest segments of society.
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135. This outlook was much cultivated in successive academic events, held in different latitudes, sponsored by the United Nations throughout the United Nations Decade of International Law in the nineties, which provided some insights for refining the conceptual universe of contemporary International Environmental Law. When emphasis was drawn into the promotion of sustainable development and the much needed reduction and eradication of poverty, for example, such considerations were advanced in the light of both inter- and intra-generational equity.

136. In this connection, the comprehensive Agenda 21, adopted at the close of UNCED in Rio de Janeiro in 1992, pertinently warned, in its preamble, that

"Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. However, integration of environment and development concerns and greater attention to them will lead to the fulfilment of basic needs . . . No nation can achieve this on its own; but together we can – in a global partnership for sustainable development.
Agenda 21 addresses the pressing problems of today and also aims at preparing the world for the challenges of the next century." (Paras. 1 and 3.)

137. Half a decade later, the aforementioned 1997 UNESCO Declaration on the Responsibilities of the Present Generations toward Future Generations, in acknowledging the current threats to "the very existence of humankind and its environment" (preamble), singled out the need to act on the basis of a spirit of intra-generational and inter-generational solidarity for the "perpetuation of humankind" (Article 3). And one decade after UNCED in Rio de Janeiro, the World Summit on Sustainable Development, held in Johannesburg (September 2002), adopted the Johannesburg Declaration on Sustainable Development, whereby the international community reasserted its "commitment to sustainable development" (para. 1), keeping in mind "the future of humanity". Once again, attention was turned to considerations in the light of both inter- and intra-generational equity, calling for the overcoming of inequities in time and space.

138. This outlook, bringing together the protection of the environment and the protection of human rights, continues to be cultivated today, at the end of the first decade of the XXIst century[FN114]. Numerous international instruments have captured today the rationale of sustainable development. Contemporary expert writing is also gradually recognizing its relevance; while great part of that writing continues, somewhat hesitantly, to refer to sustainable development as a "concept", there are also those who seem today to display their preparedness and open-mindedness to admit that it has turned up to be a general principle of International Environmental Law[FN115]. On the occasion of the reform of the United Nations, by the end of 2005, in addition to the two documents already mentioned in the present Separate Opinion (para. 45, supra), the Millennium Development Goals were also adopted, endorsing the "principles of sustainable development" (in the plural)[FN116].

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[FN114] Cf., e.g., resolutions 7/23 (of 28 March 2008) and 10/4 (of 25 March 2009) of the United Nations Human Rights Council (addressing human rights and climate change), preceded by, e.g., resolution 2005/60 of the former United Nations Commission on Human Rights (para. 8), among others.
[FN115] Cf., e.g., Ph. Sands, Principles of International Environmental Law, 2nd ed., Cambridge, University Press, 2003, pp. 252, 260 and 266; C. Voigt, Sustainable Development as a Principle of International Law, Leiden, Nijhoff, 2009, pp. 145, 147, 162, 171 and 186. As States cannot rely on scientific uncertainties to justify inaction, in face of possible risks of serious harm to the environment, the precautionary principle has a role to play, as much as "the principle of sustainable development"; P. Birnie, A. Boyle and C. Redgwell, International Law and the Environment, 3rd ed., Oxford, University Press, 2009, p. 163.
[FN116] Targets 7.A and 7.B of the Millennium Development Goals.
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139. There are strong reasons for recognizing sustainable development as a guiding general principle for the consideration of environmental and developmental issues. Both the 1992 Rio Conference and the 1993 Vienna Conference clarified, for the ongoing cycle of United Nations World Conferences along the nineties, that the implications of placing people at the centre of concerns were considerable, and called for a reassessment of traditional concepts (e.g., inter alia, models of development and international co-operation), so as to safeguard the environment and to achieve the sustainability of human life itself. More recently, in 2008, an approach has been advanced with the aim of "aligning" the aforementioned Millennium Development Goals with human rights[FN117].

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[FN117] United Nations/Office of the High Commissioner for Human Rights, Claiming the Millennium Development Goals: A Human Rights Approach, Geneva, United Nations, 2008, pp. 1-52.
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140. In the light of the considerations above, the present outcome of the case of the Pulp Mills leaves, in this respect, much to be desired, on three accounts, namely: first, in relation to the insufficiency of the arguments of the contending parties on, concretely, the social impacts of the pulp mills, despite having addressed sustainable development (cf. infra); secondly, in respect of the insufficiency of attention on the part of the Court to the particular point at issue; and thirdly, with regard to the absence of any express acknowledgement by the Court of the guiding role of general principles of International Environmental Law. Having pointed this out, may I now turn to the contentions of Argentina and Uruguay on sustainable development, in the ambit of the cas d'espèce.

2. The awareness of the contending Parties of the implications of sustainable development

141. In the present case of the Pulp Mills, the contending parties addressed sustainable development interchangeably as a "concept" and as a "principle". In its Memorial, Argentina argued that the two parties were "linked by respect for the principle of sustainable development" when they undertook "activities on the River Uruguay"[FN118]. Yet, they did not coincide as to the application of that "concept" or "principle", which, in Argentina's view, required an integrated approach to, and "a balance to be achieved" between the objectives of socio-economic development and of environmental protection, as was solemnly declared in the 1992 Rio Declaration on Environment and Development (Principles 3 and 4[FN119]) – ranking among "the principles which are supposed to guide the interpretation and application of the 1975 Statute"[FN120].

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[FN118] Memorial of Argentina, para. 3.177.
[FN119] Ibid., para. 3.179.
[FN120] Reply of Argentina, para. 4.32, and cf. also para. 1.48.
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142. Argentina further contended, in its Memorial, that "[o]ne of the key elements of the principle of sustainable development is that meeting the developmental needs of current generations must not jeopardize the well-being of future generations"[FN121]. Insisting on Principles 3 and 4 of the 1992 Rio Declaration, Argentina added that

"Under the principle of sustainable development, States fulfil their right to development while complying with the obligations incumbent on them as regards the promotion and protection of the environment. This includes the obligations . . . to which that Statute refers . . The concept of 'sustainable development' cannot be relied upon to justify giving the objectives of economic development any priority over essential environmental needs."[FN122]

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[FN121] Memorial of Argentina, para. 3.180.
[FN122] Ibid.,, paras. 5.6-5.7, and cf. also para. 5.8.
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143. Thus, in maintaining that the "principle of sustainable development" applies to the 1975 Statute, Argentina recalled, in its Memorial, Principle 3 of the 1992 Rio Declaration on Environment and Development, whereby "the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations"[FN123]. Moreover, still in its Memorial, Argentina referred to the 2002 Environmental Protection Plan for the River Uruguay (celebrated by CARU with 15 Argentine and Uruguayan local authorities), which approached the obligations set out by the 1975 Statute as providing "a collective, participative and collaborative framework" for co-operation and co-ordination to protect the River Uruguay "for future generations"[FN124].

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[FN123] Ibid., para. 5.5.
[FN124] Ibid, para. 3.153.
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144. On its part, Uruguay, evoking, in its Counter-Memorial, the "principles of general international law"[FN125], argued that

"The right of all States to pursue sustainable economic development is enshrined in Principle 2 of the 1992 Rio Declaration . . . [which] affirms both the sovereign right of States to exploit their own resources 'pursuant to their own environmental and developmental policies' and their responsibility 'to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or to areas beyond the limits of national jurisdiction'" .

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[FN125] Counter-Memorial of Uruguay, para. 1.26.
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145. In its view, like Principle 4, Principle 2 of the Rio Declaration "requires integration or accommodation of development and environmental protection" . And Uruguay added that

"Argentina's arguments about the 1975 Statute entirely fail to address this need to accommodate economic development and environmental protection when utilizing the waters of the Uruguay River. Indeed, Argentina's Memorial studiously cultivates the impression that the 1975 Statute subjugates considerations of economic development to unyielding environmental concerns"[FN126].

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[FN126] Ibid., para. 2.33.
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146. Uruguay further stated, in its rejoinder, that "[d]evelopment is permitted (indeed, required under Article 1 of the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, among other places) so long as the environment is protected for the benefit of future generations"[FN127]. In acknowledging its need to improve the "living conditions" of "present and future generations of its population"[FN128], Uruguay argued that "Argentina has not challenged the right of Uruguay to develop economically, and thus to meet the needs of present and future generations of her citizens"[FN129].

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[FN127] Rejoinder by Uruguay, para. 2.130.
[FN128] ICJ, Compte rendu CR 2009/17, pp. 46 and 48, paras. 1 and 5, and cf. also p. 50, para. 11.
[FN129] Ibid., p. 58, para. 32.
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147. This last remark was made by Uruguay in the course of the oral phase of proceedings in the present case of the Pulp Mills, wherein counsel for both Uruguay and Argentina retook and insisted on their respective points advanced in the written phase of the proceedings in the cas d'espèce. Both Argentina and Uruguay were quite aware of the inter-temporal dimension underlying sustainable development as a principle of International Environmental Law, and the ICJ should, in my view, have taken note of, and endorsed[FN130], sustainable development as such, thus contributing to the progressive development of International Environmental Law.

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[FN130] The Court could, for example, have taken up, and further developed, bearing in mind the contentions of the parties in the present case of the Pulp Mills, its own obiter dictum in the whole (not only in part, as it did) of paragraph 140 of its Judgment in the Gabcikovo-Nagymaros Project case (Hungary v. Slovakia, Judgment of 25 September 1997), p. 77.
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XI. Judicial determination of the facts

148. The aforementioned general principles, and temporal dimension, are to be kept in mind, in the exercise of the international judicial function, which also includes the judicial determination of the facts. As to this latter, conflicting evidence assumed noticeable proportions in the present case of the Pulp Mills. In fact, by and large, conflicting evidence seems to make the paradise of lawyers and practitioners, at national and international levels. It seems to make, likewise, the purgatory of judges and fact-finders, at national and international levels. Consideration of this issue cannot be avoided in the present case of the Pulp Mills.

149. May it here be recalled that, for the determination of the facts, the Court has accumulated some experience in receiving the testimony of experts or witnesses, though not a particularly extensive one[FN131]. In turn, expert-witnesses – a category not foreseen in the Statute or the Rules – were object of attention of the Court on very few occasions[FN132], by a functional necessity. On-site visits – Article 66 of the Rules – were undertaken once by the old PCIJ (case of the Diversion of Waters from the Meuse, 1937), and once by the ICJ (Gabcikovo-Nagymaros Project case, 1997), but without involving actual fact-finding. Only on two occasions so far, fact-finding as such (Article 50 of the Statute and Article 67 of the Rules) was contemplated by The Hague Court motu propio.

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[FN131] The ten occasions to date, when it did, are the following: Corfu Channel case (United Kingdom v. Albania, 1949), Temple of Preah Vihear case (Cambodia v. Thailand, 1962), South West Africa cases (Ethiopia and Liberia v. South Africa, 1966), Continental Shelf case (Tunisia v. Libya, 1982), Gulf of Maine case (Canada v. United States, 1984), Continental Shelf case (Libya v. Malta, 1985) , Nicaragua v. United States case (1986), Elettronica Sicula S.p.A. (ELSI) case (United States v. Italy, 1989), Land, Island and Maritime Frontier Dispute case (El Salvador v. Honduras, 1992), Application of the Convention against Genocide case (Bosnia Herzegovina v. Serbia and Montenegro, 2006).
[FN132] E.g., in the Corfu Channel case (United Kingdom v. Albania, 1949), in the Temple of Preah Vihear case (Cambodia v. Thailand, 1962), and in the South West Africa cases (Ethiopia and Liberia v. South Africa, 1966).
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150. The first occasion occurred in the Chorzow Factory case (Germany v. Poland, 1928), when the PCIJ designated (citing Article 50 of the Statute) a committee of experts in September 1928, but, as the case became object of a friendly settlement, that committee was dissolved before it could render its report. The second occasion was the Corfu Channel case (United Kingdom v. Albania, 1949), which became the leading case on the subject: the appointed experts presented two reports, in January and February 1949 (having visited the area concerned wherein they conducted further inquiries), which were taken into account by the ICJ in its Judgment on the merits, of 9 April 1949. Still in the same Corfu Channel case, the designated experts submitted another report in December 1949 to the Court, which, after questioning them, took their conclusions into full account in its Judgment on reparations, of 3 December 1949, in the case at issue[FN133].

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[FN133] On yet a third occasion, somewhat distinctly, in the Gulf of Maine case (Canada v. United States), the ICJ Chamber was required, under the special agreement, to appoint an expert; after his appointment (again citing Article 50 of the Statute), his "explanatory report" was annexed by the ICJ Chamber, to its Judgment of 12 October 1984.
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151. Thus, in the light of the Court's own experience so far, in present case of the Pulp Mills, not all the possibilities of fact-finding were exhausted. I am of the view that paragraph 170 of the present Judgment should have pointed out also the additional possibility opened to the Court, if it deemed it necessary, namely, that of obtaining further evidence motu propio. Yet, if the Court would have made use of this additional possibility (e.g., by means of in loco fact-finding) – as I think it should have – would its conclusion as to substantive obligations under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay have been different? Any answer to this question would be to a large extent conjectural.

XII. Beyond the inter-State dimension: related aspects

152. Previous considerations, concerning general principles of law, as well as the temporal dimension, bring me, in the present Separate Opinion, to keep on looking well beyond the inter-State dimension – despite the strictly inter-State structure of the international contentieux before the ICJ. In doing so, I shall review related aspects to which I attribute particular significance, namely: (a) the imperatives of human health and the well-being of peoples; (b) the role of civil society in environmental protection; (c) the objective character of obligations, beyond reciprocity; and (d) CARU's international legal personality. I shall next turn on to each of them.

1. The imperatives of human health and the well-being of peoples

153. Already in 1974, two years after the adoption of the Stockholm Declaration, the United Nations Charter on Economic Rights and Duties of States (which resulted from a Latin American initiative[FN134]) warned that the protection and preservation of the environment for present and future generations were the responsibility of all States (Article 30). The reference to succeeding generations in time disclosed, first, an awareness of the long-term temporal dimension, and, secondly, a concern beyond the strictly inter-State dimension, prompted by the goal of securing human health and the well-being of peoples. The United Nations General Assembly resolution 44/228, of 1989, deciding to convene a United Nations Conference on Environment and Development in Rio de Janeiro in 1992, for example, affirmed in fact that the protection and enhancement of the environment were major issues that affected the well-being of peoples, and singled out, as one of the environmental issues of major concern, the "protection of human health conditions and improvement of the quality of life" (paragraph 12 (i)).

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[FN134] Launched on the occasion of the III UNCTAD, on 1 April 1972; the Charter was adopted by the United Nations General Assembly on 12 December 1974.
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154. International Environmental Law is attentive to human health. In the present case of the Pulp Mills the point was touched upon by the two contending parties. In so far as the social impacts of the pulp mill (the Botnia plant) are concerned, Argentina, in its Memorial, displayed attention to "the health and well-being of the neighbouring communities" (paras. 6.44-6.45), while Uruguay, in its rejoinder, referred to social impact monitoring indicating an improvement in the "quality of life" in Fray Bentos and "surrounding communities" (para. 4.40). But while Uruguay, in its Counter-Memorial, contended that the pulp mill did not constitute a threat to public health (paras. 5.33-5.34), Argentina, in its turn, sought to demonstrate that eutrophication of the river and air pollution may be hazardous to human health[FN135], and referred to incidents involving workers and other employees of the Botnia plant and other persons living nearby[FN136].

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[FN135] Cf. Memorial of Argentina, paras. 5.52, 5.70, 7.162 and 7.96; Reply of Argentina, paras. 3.212 and 4.176, and Vol. III, Ann. 43, paras. 4.4.2-4.4.3; and ICJ, CR 2009/14, pp. 43-44, para. 14.
[FN136] Cf. Reply of Argentina, para. 0.10.
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155. Yet, one is left with the impression that the parties did not advance full-fledged arguments on general issues of public health that might be raised by the operation of the pulp mill. Arguments were rather focused on environmental effects (water quality and ecological balance) and aspects of impacts on life quality, such as tourism. In fact, particular attention was devoted to the impact on tourism (tourist activity and products)[FN137]. One is thus further left with the impression that considerations proper to the homo oeconomicus played here an important role.

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[FN137] Cf. Memorial of Argentina, paras. 6.54-6.63; Rejoinder of Uruguay, paras. 6.82-6.87.
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156. In any case, attention is to be drawn also to the points made by the ICJ itself, in the present Judgment in the Pulp Mills case (paras. 219-224), concerning the consultation to the affected populations. As already pointed out in the present Separate Opinion, the obligation to notify and share information with the affected populations is one which ensues from the precautionary principle (cf. supra). This is what the Court did not expressly state. But, in any case, attention is turned to the affected populations, beyond the strictly inter-State dimension.

157. It should not pass unnoticed that, in a recent Judgment (of 13 July 2009) – recalled in the present Judgment (para. 208) – in the case concerning the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), the Court upheld the customary right of subsistence fishing (para. 143-144) from the inhabitants of both banks of the San Juan River. The respondent State had commendably reiterated that it had "absolutely no intention of preventing Costa Rican residents from engaging in subsistence fishing activities" (para. 140). After all, those for fish for subsistence are not the States, but the human beings struck by poverty. The Court further held that that customary right would be "subject to any Nicaraguan regulatory measures relating to fishing adopted for proper purposes, particularly for the protection of resources and the environment" (para. 141).

158. That case, like the present one, also concerned Latin American countries. In both cases the ICJ looked beyond the strictly inter-State dimension, into the segments of the populations concerned. The contending States, in both cases, advanced their arguments in pursuance of their vindications, without losing sight of the human dimension underlying their claims. Once again, Latin American States pleading before the ICJ have been faithful to the already mentioned deep-rooted tradition of Latin American international legal thinking, which has never lost sight of the relevance of doctrinal constructions and the general principles of law. I dare to nourish the hope that the ICJ is prepared to change its vision, to the effect of proceeding to look with more determination beyond the strictly inter-State dimension whilst also taking into account the relevant legal principles, in the exercise of its function in contentious cases; after all, in historical perspective, it should not be forgotten that the State exists for human beings, and not vice-versa.

159. Just as concern for human rights protection (e.g., rights to food and to health) can be found in the realm of International Environmental Law[FN138], concern for environmental protection can also be found in the express recognition of the right to a healthy environment in two human rights instruments[FN139]. Contemporary human rights protection and environmental protection thus display mutual concerns[FN140]. A reflection of this lies, e.g., in the outlook of the 1992 Rio Declaration on Environment and Development, adopted by UNCED: it places human beings at the centre of concerns for sustainable development, whereas the 1993 Vienna Declaration and Programme of Action, adopted by the II World Conference on Human Rights, on its part, addresses inter alia sustainable development in relation to distinct aspects of International Human Rights Law.

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[FN138] E.g., Preamble and Principle 1 of the 1972 Stockholm Declaration on the Human Environment, Preamble and Principles 6 and 23 of the 1982 World Charter for Nature, Principles 1 and 20 proposed by the World Commission on Environment and Development in its 1987 Report.
[FN139] Namely, the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Article 11), and the 1981 African Charter on Human and Peoples' Rights (Article 24); in the former, it is recognized as a right of "everyone" (paragraph 1), to be protected by the States Parties (paragraph 2), whereas in the latter it is acknowledged as a peoples' right.
[FN140] International human rights tribunals (such as the European and the Inter-American Courts), as well as United Nations supervisory organs (such as the Human Rights Committee) have decided cases, in recent years, which have a direct bearing on the right to a healthy environment in particular, and on environmental protection in general. It is beyond the scope and purpose of the present Separate Opinion to dwell upon those decisions; suffice it here to point out that the outlook pursued therein is an anthropocentric, rather than cosmocentric, one.
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160. The unequivocal recognition by UNCED in Rio de Janeiro in 1992, and by the II World Conference on Human Rights in Vienna in 1993, of the legitimacy of the concern of the whole international community with, respectively, environmental protection and human rights protection, constitutes one of the main legacies of those two World Conferences (of which I keep the best memories, engaged as I was in the work of both), which will certainly accelerate the construction of a universal culture of respect for human rights and of care with the environment. That International Law is no longer exclusively State-oriented can be seen from reiterated references to humankind, not only in extensive doctrinal writings in our days, but also and significantly in various international instruments[FN141], possibly pointing towards an international law for mankind, pursuing preservation of the environment and sustainable development to the benefit of present and future generations. This calls for a reconsideration of the basic postulates of International Law bearing in mind the superior common interests and concerns of humankind.

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[FN141] Thus, the notion of cultural heritage of mankind can be found, e.g., in the UNESCO Conventions for the Protection of Cultural Property in the Event of Armed Conflict (1954), for the Protection of the World Cultural and Natural Heritage (1972), and for the Safeguarding of the Intangible Cultural Heritage (2003). The notion of common heritage of mankind, on its part, has found expression in the realms of the Law of the Sea (1982 United Nations Convention on the Law of the Sea, Part XI, especially Articles 136-145 and 311 (6); 1970 United Nations Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction) and of the Law of Outer Space (1979 Treaty Governing the Activities of States on the Moon and Other Celestial Bodies, Article 11; and cf. 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Article I). Common heritage of mankind has also found expression in the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. And the notion of common concern of humankind, in turn, has found expression in the realm of International Environmental Law, e.g., in the preambles of the United Nations Framework Convention on Climate Change (1992) and the Convention on Biological Diversity (1992). On the reasons for the adoption of this new notion, cf. UNEP, The Meeting of the Group of Legal Experts to Examine the Concept of the Common Concern of Mankind in Relation to Global Environmental Issues (ed. D.J. Attard – Proceedings of the Malta Meeting of December 1990), Malta/Nairobi, UNEP, 1991, Report of the Proceedings, pp. 19-26 (co-rappporteurs A. A. Cançado Trindade and D.J. Attard).
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161. It may here be recalled that, already almost four decades ago, the need to look beyond the inter-State dimension was asserted by the complainants before this Court, in a case where it was felt that human health and the well-being of peoples were seriously at risk. In its application instituting proceedings (of 9 May 1973), in the aforementioned (first) Nuclear Tests case (atmospheric testing), Australia contended that it purported to protect its people and the peoples of other nations, and their descendants, from the threat to life, health and well-being arising from potentially harmful radiation derived from radio-active fall-out generated by nuclear explosions[FN142]. New Zealand, on its part, went even further in its own application instituting proceedings (also of 9 May 1973): it stated that

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[FN142] It further referred to the populations being subjected to mental stress and anxiety generated by fear; ICJ, Nuclear Tests cases (Australia v. France, Vol. I)—Pleadings, Oral Arguments, Documents, pp. 11 and 14.
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"In the period of 27 years in which nuclear tests have taken place there has been a progressive realization of the dangers which they present to life, to health and to the security of peoples and nations everywhere . . . [t]he attitude of the world community towards atmospheric nuclear testing has sprung from the hazards to the health of present and future generations involved in the dispersal over wide areas of the globe of radioactive fallout . . . With regard to nuclear weapons tests that give rise to radioactive fallout, world opinion has repeatedly rejected the notion that any nation has the right to pursue its security in a manner that puts at risk the health and welfare of other people"[FN143].

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[FN143] ICJ, Nuclear Tests cases (New Zealand v. France, Vol. II)—Pleadings, Oral Arguments, Documents, p. 7.
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162. New Zealand made clear that it was pleading on behalf not only of its own people, but also of the peoples of the Cook Islands, Niue and the Tokelau Islands[FN144]. Thus, looking beyond the strict confines of the purely inter-State contentieux before the ICJ, both New Zealand and Australia vindicated the rights of peoples to health, to well-being, to be free from anxiety and fear, in sum, to live in peace.

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[FN144] Ibid, pp. 4 and 8.
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163. Years later, in its application instituting proceedings (of 13 May 1989) and in its Memorial in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), Nauru complained before the ICJ that, in the past, the Administering Authority had conducted mining operations in the phosphate lands in the island with a "profit-making mentality", without providing Nauruans independent advice until 1964. It had thus failed to look after "the long-term needs of the Nauruan people", and to restore the island for habitation by the Nauruan people by rehabilitating its phosphate lands. Now that the trusteeship period was over (without a sense of real public accountability), Nauru came to vindicate the satisfaction of the "long-term needs" of its inhabitants, and the restoration of the island (by means of the rehabilitation of its phosphate lands) so as "to ensure the long-term future of the Nauruan people"[FN145].

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[FN145] ICJ, Case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia, Vol. I) – Pleadings, Oral Arguments, Documents, pp. 10-11, 17, 170, 174, 245 and 247.
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164. The episode reveals the awareness that the well-being of peoples is not devoid of a temporal dimension. Quite on the contrary, it has even a long-term temporal dimension, as illustrated by the case concerning Certain Phosphate Lands in Nauru. A combination of factors contributes nowadays to such widespread awareness, namely, the emergence of the principles of prevention and of precaution, as well as the principle of sustainable development, together with inter-generational equity, as already examined (cf. supra). International Environmental Law, crystallized in the light of those general principles, duly values sustainable productivity[FN146], with due attention to the imperatives of human health and the well-being of peoples.

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[FN146] Cf., to this effect, H. Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law – The Precautionary Principle: International Environmental Law between Exploitation and Protection, London/Dordrecht, Graham & Trotman/Nijhoff, 1994, pp. 4, 334, 340-341 and 344-345.
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2. The role of civil society in environmental protection

165. In the cas d'espèce, of the Pulp Mills, Argentina identified the origin of the present inter-State contentieux against Uruguay in the fact that "on 9 October 2003 the Government of Uruguay unilaterally authorized" the construction of one of the two pulp mills (Spanish company ENCE, project CMB) near the city of Fray Bentos, without the required "prior notification and consultation" under the 1975 Statute of the River Uruguay[FN147]. In October 2004 the inter-State dispute was "aggravated" when the Finnish company Botnia "informed the Uruguayan authorities of its plans to construct a second pulp mill in the same area on the left bank of the River Uruguay, less than 7 km from CMB, to be called 'Orion'"[FN148]. Yet, beyond the inter-State optics, the real origin of the case goes further back in time, as a result of an initiative of an Argentine non-governmental organization (NGO) taken on 14 December 2001.

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[FN147] ICJ, Application Instituting Proceedings (of 4 May 2006), Pulp Mills case, para. 9.
[FN148] Ibid., para. 12.
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166. In fact, in its Counter-Memorial, Uruguay noted that CARU was informed of the commissioning of the ENCE plant in its plenary meeting of 14 December 2001, when it considered "a letter from a local non-governmental organization in Argentina expressing concern about reports that a cellulose plant would be built in the vicinity of Fray Bentos" (para. 3.16). This NGO was called "Movement for Life, Work and Sustainable Development" (Movimiento por la Vida, el Trabajo y un Desarrollo Sustentable – MOVITDES); the NGO's letter to CARU, dated 16 November 2001, appended to the Counter-Memorial of Uruguay[FN149], expounded on "the environmental risk posed by the installation and operation of a cellulose paste plant in the area of M'Bopicuâ", in Uruguay[FN150]. In this respect, Argentina, in its Reply, pointed to the "quite indirect way in which CARU became aware of the existence of the pulp mill projects in the Fray Bentos region", since it was "an Argentine NGO from the Entre Rios province that drew CARU's attention to rumours about pulp mills being built on the opposite bank" (para. 2.33).

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[FN149] Counter-Memorial of Uruguay, Vol. IV, Ann. 92, p. 2185 (Comisiôn Administradora del Rio Uruguay [CARU], Acta n. 14/01, Reuniôn Plenaria Ordinaria, of 14 December 2001).
[FN150] Ibid., p. 2185.
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167. Thus, in the real origin of the present case, opposing Argentina to Uruguay, we find, by the end of 2001, a non-State entity, an Argentine NGO, expressing its concern to an international entity, CARU, on a matter of considerable public interest, affecting the local population, such as the alleged risks for the environment. The Governments of the two States concerned only stepped in two years later, when the dispute became an inter-State case, from October 2003 onwards (supra). This shows, in my perception, the artificiality of the purely inter-State outlook, when it comes to face challenges of general public interest, such as those concerning environmental protection.

168. In any case, in its Reply, Argentina took note of the role that NGOs can play in the fulfilment of the principle of environmental impact assessment (EIA), of which "public consultation is an integral part" (para 4.105). In this connection, Argentina noted that in order to hold "meaningful consultations with the population concerned", it was necessary to have NGOs involved in the process[FN151]. Along the procedure before the Court in the present case of the Pulp Mills, at distinct moments both Argentina and Uruguay referred to the role of NGOs in environmental impact assessment[FN152] as well as environmental monitoring[FN153]. It is, in my view, much to the credit of both Uruguay and Argentina to have done so, thus expressly acknowledging the ineluctable partnership between public power and entities of the civil society when it comes to matters of general public interest, such as environmental protection.

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[FN151] It further referred to the practice of the World Bank, in particular the Investigation Report of the Inspection Panel in Paraguay: Reform Project for the Water and Telecommunications Sectors, wherein it was stated that the policy on EIA required that "the views of the affected people and local NGOs [be] taken fully into account in particular while preparing the EIA" (para. 4.102, n. 1030). Cf. also Memorial of Argentina, para. 4.104, n. 1036.
[FN152] Cf. Memorial of Argentina, para. 5.62; Counter-Memorial of Uruguay, paras. 5.41 and 7.28.
[FN153] Cf. Counter-Memorial of Uruguay, paras. 7.28-7.29.
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169. This is what has happened in the present case of the Pulp Mills. As time went on, a number of Argentine and Uruguayan NGOs indeed made observations regarding the two projected pulp mills, the CMB and the Orion projects (supra): those included files with documents from, besides the already mentioned MOVITDES, the Redes Amigos de la Tierra, the Fundacion Movimiento Mundial por los Bosques Tropicales, the Asociacion Soriano para la Defensa de los Recursos Naturales, the Grupo Ecologico de Young, the Grupo Guayubira (Forest and Forestry Environmental Group), and the Redes Socioambientales de Entre Rios[FN154]. This is a fact, which should not pass unnoticed, and well-documented in the materials submitted to the ICJ by the contending parties in the written phase of the procedure. The Governments concerned counted on the co-operation provided by entities of the civil society of the two respective countries, Uruguay and Argentina.

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[FN154] Cf. Memorial of Argentina, Vol. V, Ann. 12, p. 704; and Counter-Memorial of Uruguay, Vol. II, Ann. 12, p. 1.
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170. It follows, from the aforementioned episode, that NGOs from the two States concerned contributed effectively to the elucidation of the matter under contention in the present case of the Pulp Mills. And, in addition, as already pointed out, they marked presence in the process of consultation to the local population (cf. supra). Thus, in so far as the construction of one of the two pulp mills - that of Orion (Botnia) – is concerned, public consultations of segments of the affected populations (in the form also of numerous interviews, including with NGOs and other civil society groups) were undertaken, both before and after the granting of the initial environmental authorization, on both sides of the River Uruguay – and this has been taken note of, by the Court, in the present Judgment (paras. 213-214).

171. The fact that NGOs and other entities of civil society have marked their presence in the very origins and in the course of the present Pulp Mills case, is in my view yet another confirmation that, in the present domain of protection, NGOs and other entities of the civil society have, in the last decades, indeed contributed to awaken the environmental awareness also of States themselves, to crystallize the principles of prevention and of precaution, and to shape the opinio juris communis as to environmental protection. This is a domain which surely transcends the traditional inter-State dimension. And States have benefitted from such contribution of NGOs and other entities of civil society, to the ultimate benefit of their populations.

3. Beyond reciprocity: obligations of an objective character

172. The evolution of environmental protection likewise bears witness of the emergence of obligations of an objective character without reciprocal advantages for States. The 1972 Stockholm Declaration on the Human Environment expressly refers to the "common good of mankind" (Principle 18). The 1992 Rio Declaration on Environment and Development begins by asserting that "[h]uman beings are at the centre of concerns for sustainable development" (Principle 1), whilst the United Nations Framework Convention on Climate Change, also adopted in Rio de Janeiro in 1992, states that the duty to protect the climate system is to "the benefit of present and future generations of humankind" (Article 3 (1)).

173. Rules on the protection of the environment are adopted, and obligations to that effect are undertaken, in the common superior interest of humankind. This has been expressly acknowledged in some treaties in the field of the environment[FN155]; it is further implicit in references to "human health" in some environmental law treaties[FN156]. Furthermore, the 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, e.g., foresees the need for watercourse States to "consult with a view to negotiating in good faith" watercourse agreements (Article 3 (5)). In several environmental law treaties, the obligations of States Parties are clearly set forth in mandatory terms (verb "shall"). One example, among many others, is afforded by the 1991 ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (Article 2-7). In the 1975 Statute of the River Uruguay, applicable in the present case of the Pulp Mills, the same mandatory language appears (verb "shall") in relation to procedural obligations (Articles 7-8 and 10-12) as well as substantive obligations (Article 36); and Articles 35 and 41, also covering substantive obligations, lay down, likewise, clear commitments on the part of the States Parties (verb "undertake").

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[FN155] E.g., preambles of the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction; the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques; the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources; the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft; the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage.
[FN156] E.g., the 1985 Vienna Convention for the Protection of the Ozone Layer, preamble and Article 2; the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, preamble; Article 1 of the three aforementioned marine pollution Conventions.
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174. In domains of protection, such as that of the environment, it is the objective character of obligations that ultimately matters. There cannot be here much space for laisser faire, laisser passer. I am not really entirely convinced of any presumed ontological distinction between procedural and substantive obligations (remindful of the sterile and endless polemics between lawyers schooled in procedural and substantive branches of the Law); more often that one realizes, la forme conforme le fond. Nor I am persuaded by the need to resort to the unsatisfactory distinction between obligations of conduct and of result, particularly in domains of protection, such as that of the environment. In the present Judgment in the Pulp Mills case, the Court has at least admitted that there is a "functional link" between procedural and substantive obligations under the 1975 Statute of the River Uruguay, in regard to prevention (para. 79).

175. For the appreciation of the objective character of obligations in a domain of protection such as that of International Environmental Law, one needs, again, to turn attention to the relevance of principles of law. Unfortunately, the Court has not done so in the present Judgment. For example, when it briefly invokes, in passim, the principle of good faith (in relation to the operation of the mechanism of co-operation under the 1975 Statute – para. 145), it immediately links its brief invocation of that principle to customary international law, as if general principles were subsumed under this latter. They are not. On the contrary, in my conception those principles orient the evolution of both customary and conventional international law.

176. In effect, the principle of good faith in the compliance with international obligations (pacta sunt servanda) is generally regarded as providing the foundation of the international legal order itself[FN157]. The principle pacta sunt servanda – asserted by that of good faith (bona fides)[FN158] – effectively transcends both customary and conventional international law, being characterized as a general principle of international law[FN159]. Its insertion into the 1969 Vienna Convention on the Law of Treaties (Article 26 and preamble) was endowed with a clearly axiomatic character: it came to appear in a convention of codification, which asserted in an incontrovertible way its wide scope. Yet, already well before its acknowledgement in the 1969 Vienna Convention referred to, the principle pacta sunt servanda effectively appeared, as already indicated, as a true general principle of international law, endowed with widespread jurisprudential recognition[FN160].

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[FN157] G. White, “The Principle of Good Faith”, in The United Nations and the Principles of International Law ⎯ Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 231 and 236.
[FN158] M. Lachs, "Some Thoughts on the Role of Good Faith in International Law", in Declarations on Principles, a Quest for Universal Peace – Liber Amicorum Discipulorumque B.VA. Roling, Ley den, Sijthoff, 1977, pp. 47-55; Clive Parry, "Derecho de los Tratados", in Manual de Derecho Internacional Publico (ed. M. Sorensen), 5th. reimpr., Mexico, Fondo de Cultura Econômica, 1994, pp. 229 and 200-201.
[FN159] Ian Brownlie, Principles of Public International Law, 5th. ed., Oxford, University Press, 1998, p. 620.
[FN160] E. de la Guardia and M. Delpech, El Derecho de los Tratados y la Convention de Viena, Buenos Aires, La Ley, 1970, p. 276.
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177. The scope of application of the principle pacta sunt servanda, as well as the ultimate question of the validity of the norms of International Law, naturally transcend the particular ambit of the law of treaties[FN161]; the principle pacta sunt servanda is, in any case, deeply rooted in the international legal system as a whole[FN162]. Good faith is, in fact, inherent to any legal order, guiding the behaviour of the subjects of law. Four years after the adoption of the 1970 United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, the ICJ, in the (first) Nuclear Tests case (1974), stressed, in a celebrated obiter dictum, the fundamental character of the principle of good faith, pondering that

"One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasing essential."[FN163]

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[FN161] Cf. J. L. Brierly, The Basis of Obligation in International Law, Oxford, Clarendon Press, 1958, p. 65; J. L. Brierly, The Law of Nations, 6th. ed., Oxford, Clarendon Press, 1963, p. 54.
[FN162] For the historical and doctrinal evolution of the principle pacta sunt servanda, cf., e.g., M. Sibert, "The Rule Pacta Sunt Servanda: From the Middle Ages to the Beginning of Modern Times", 5 Indian Yearboook of International Affairs (1956) pp. 219-226; J. B. Whitton, "La règle pacta sunt servanda", 49 Recueil des Cours de l'Académie de Droit International de La Haye (1934) pp. 151-268.
[FN163] ICJ, (first) Nuclear Tests cases (atmospheric testing, Australia and New Zealand v. France), ICJ Reports (1974) p. 473, para. 49.
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178. On several other occasions, in its jurisprudence constante, the ICJ has drawn attention to the principle of good faith, in the most diverse circumstances[FN164], including in respect of the duty to negotiate[FN165]. As to this latter, the Court pondered, in the North Sea Continental Shelf cases (Federal Republic of Germany/Denmark and Netherlands), in another obiter dictum, that "[o]n a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continental shelves" (I.CJ. Reports 1969, para. 85). There always are the prima principia, wherefrom norms and rules emanate; in sum, in my own conception, expressed in the present Separate Opinion, the principle of good faith occupies a key position in International Law and in all legal systems, providing them all with an ethical basis, and surely standing above positive law.

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[FN164] Cf., e.g., Gulf of Maine case (Canada v. United States, 1984, p. 305, para. 130), Nicaragua v. United States case (1984, p. 414, para. 51, p. 418, para. 60 and p.419, para. 63), Border and Transborder Armed Actions case (Nicaragua v. Honduras), 1988, p. 105, para. 94), Gabcikovo-Nagymaros Project case (Hungary v. Slovakia case, p. 66, para. 109, p. 67, para. 112 and p. 78, para. 142), case of the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections, 1998, p. 296, para. 38).
[FN165] Cf., e.g., Fisheries Jurisdiction case (F.R. Germany v. Iceland, 1974, p. 30, paras. 69-70), Advisory Opinion on the Interpretation of the 1951 Agreement between the WHO and Egypt (1980, p. 92, para. 43 and p. 95, para. 48), Gulf of Maine case (Canada v. United States, 1984, p. 292, para. 87), Advisory Opinion on Nuclear Weapons (1996, p. 263, para. 99 and p. 264, para. 102), case of the Land and Maritime Boundary between Cameroon and Nigeria (Merits, 2002, p. 424, para. 244).
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4. CARU's legal personality

179. The consideration of the issues under contention in the present case of the Pulp Mills takes us, in relation to yet another related aspect, beyond the strictly inter-State dimension, when the Court rightly acknowledged the legal personality of CARU, as from the provision of Article 50 of the 1975 Statute of the River Uruguay. The implications inferred by Uruguay and Argentina, from such legal personality, were, however, not the same. This calls for a review and assessment of their respective arguments in this respect.

180. In his pleadings of 23 September 2009 about the legal nature of CARU, as a joint institutional mechanism, counsel for Uruguay claimed that International River Commissions are created by member States, which remain "free to go outside the joint mechanism when it suits their purposes, and they often do so". While acknowledging that CARU is a legal entity (Article 50 of the Statute), able to "conclude agreements with both Parties specifying the privileges and immunities enjoyed by its members and staff under international law" (Article 54), counsel for Uruguay asserted that CARU is not an autonomous body, but in fact is the parties themselves, i.e.,

"CARU is an instrument of the two Parties' Foreign Ministries" . He stressed that the way CARU takes decisions is strictly dependent on the will of the two parties; thus, in his view, Argentina and Uruguay were free to deal with the matter of the Botnia project directly, at the highest political level, and not through CARU.

181. Argentina, in turn, claimed that CARU has a vital role in maintaining the integrity of the 1975 Statute and the proper administration of the machinery for co-operation. Argentina considered that Article 7 of the 1975 Statute specifically confers a power of determination to CARU , which constitutes a decision . Argentina asserted, in its Memorial and Reply, that the terms employed demonstrate CARU's ability to take a (binding) decision for the purposes of Article 7 of the 1975 Statute[FN166].

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[FN166] Memorial of Argentina, paras. 3.66-3.70; and Reply of Argentina, paras. 1.158-1.160
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182. Uruguay, on its part, retorted that CARU serves solely as a vehicle for facilitating communication between the Parties, but it does not have a decision-making authority over the project[FN167]. Uruguay, thus, in its arguments, restricted the role of CARU, under Articles 7-12 of the 1975 Statute, to the undertaking of a preliminary technical review, a screening function. In its view, CARU – an intergovernmental entity, whose "executive" consists of the two delegations appointed by the two member States – contributes to conciliation between the parties, as a channel for the implementation of the scheme of co-operation scheme set forth in the 1975 Statute.

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[FN167] Counter-Memorial of Uruguay, paras. 2.189-2.205, and cf. Vol. IV, Anns. 82 and 84.
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183. Yet, Article 50 of the 1975 States determines that CARU "shall be made a legal entity in order to perform its functions", and the parties "shall provide it with the necessary resources and all the information and facilities essential to its operations". CARU is thus endowed with legal personality, as the ICJ rightly pointed out in the present Judgment in the Pulp Mills case (para. 87). In a report of 1987, by a former President of CARU (from the delegation of Argentina), analyzing the competences of the organ and the extent whereto they were fulfilled (within CARU's Subcommittee on Juridical and Institutional Affairs), it is stated that Article 7 of the Statute

"[m]akes it obligatory for each Party to notify CARU if it plans to construct new channels, modify or alter already existing channels in any significant way, or perform any work on a scale sufficient to affect navigation, the river regime, or its water quality, so that CARU makes a declaration in the first instance" .

184. The 1975 Statute, furthermore, grants CARU the prerrogatives of celebrating agreements with both parties regulating "privileges and immunities enjoyed by its members and staff under international law" (Article 54), and of setting up "whatever subsidiary bodies it deems necessary" (Article 52). Thus, in addition to its conciliatory and coordinating functions, CARU has also these executive, technical and regulatory functions. And CARU's conciliation procedure is set up in mandatory terms (Articles 58-59). The co-ordination measures effected by CARU, and its participation in the regime of consultation, make it the ideal forum wherein the parties can present and state their differences and disputes, without having to go directly to other instances for the settlement of their disputes, such as the ICJ.

185. Uruguay has seen it fit to annex, to its Counter-Memorial, the minutes of a technical-legal symposium (Encuentro Técnico-Jurîdico), held at CARU's headquarters on 17-18 September 1987[FN168]. The proceedings of this symposium contain successive acknowledgements of the legal personality of CARU , distinct and independent of that of the two States Parties – to the 1975 Statute – that created it[FN169]. Its legal capacity is also acknowledged[FN170]. The same symposium also considered River Commissions in a comparative perspective; thus, a renowned specialist on the matter, Julio Barberis (quoted by both Argentina and Uruguay during the proceedings of the present case of the Pulp Mills before the ICJ), stated on that occasion, on 18 September 1987, that there have been distinct systems of cooperation between riparian States, ranging from direct contacts between the Foreign Ministries, or other entities, of the States concerned, to the creation of International River Commissions, also operating each one with its own characteristics[FN171].

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[FN168] Ibid., Vol. IA, Ann. 72.
[FN169] Ibid., p. 44.
[FN170] Cf. ibid, p. 35.
[FN171] In the words of J. Barberis himself, in the aforementioned 1987 symposium held at CARU,
"Entre las diversas instituciones o sistemas de cooperation que los Estados crean para realizar aprovechamientos hidraulicos, se encuentran las Comisiones Fluviales Internationales, como las del Rhin y del Danubio. Estas organizaciones poseen una determinada personalidad juridica internacional. Pero (...) el sistema de la Cuenca del Plata instituido por el Tratado de Brasilia carece de personalidad juridica internacional. (...) El establecimiento de Comisiones Fluviales Internationales es solo una forma o modo de cooperar entre los Estados, entre varias otras posibles, para llevar a cabo un aprovechamiento hidraulico. Sin embargo, conviene anadir que la técnica de crear Comisiones Fluviales Internationales es una forma utilizada con frecuencia y desde antiguo por los Estados, y que, justamente, la primera organization internacional fue una Comision Fluvial: la Comision del Rhin, creada en 1804 mediante un tratado entre Francia y el Sacro Imperio"; ibid., p. 64.
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186. The 1975 Statute had thus established, beyond the strictly direct bilateral cooperation between the two States concerned, an institutional framework for its conduction. In the present Judgment in the Pulp Mills case, the ICJ observed that, "like any international organization with legal personality, CARU is entitled to exercise the powers assigned to it by the 1975 Statute and which are necessary to achieve the object and purpose of the latter"; the novelty in the cas d'espèce is that this also applies in the fulfilment of the common interests of the States Parties – the Court added – to organizations which, "like CARU, only have two member States" (para. 89).

187. It is, in my view, very hard to reconcile the Court's acknowledgement of CARU's legal personality (paras. 87 and 89) with its lenience in respect of the "understanding" reached by the parties in the Ministerial Meeting of 2 March 2004 (paras. 131). As I sustain in the next section (XIII) of the present Separate Opinion, that "understanding" does not abide by the precautionary principle. Furthermore, there was a procedure, laid down in Articles 7-12 of the 1975 Statute, to be followed by the parties. The Court should not have yielded to State voluntarism in paragraph 131 of the present Judgment, as the language of the procedure (in Articles 7-8 and 10-12) set up by the Statute is mandatory (verb "shall"), not permissive.

188. There is nothing in the 1975 Statute of the River Uruguay, regarded by the Court as the applicable law in the cas d'espèce, that could have led the parties – Uruguay and Argentina – to infer the prerogative of reaching an "understanding", as they did, circumventing the procedure of the 1915 Statute. By the same token, there is nothing in the same Statute that could have led the Court to assume, as it did, that the parties were "entitled to depart" from the statutory procedure (para. 128); CARU could not have been by-passed at all.

189. The mandatory character of the statutory procedure is, moreover, what clearly ensues from the Court's conclusion (para. 266) that both parties have the obligation to enable CARU "to exercise on a continuous basis the powers conferred on it by the 1915 Statute", and "to continue their co-operation through CARU and to enable it to devise the necessary means to promote the equitable utilization of the river, while protecting its environment" (para. 266). These continuing obligations are in addition to the initial obligation of the parties, under the 1975 Statute, to notify through CARU, before the authorization of construction or the commissioning of works, as "an essential part of the process leading the parties to consult in order to assess the risks of the plan and to negotiate possible changes which may eliminate those risks or minimize their effects" (para. 115), thus avoiding "potential damage" (para. 113).

190. The legal personality of an international organization (whatever the number of its member States might be) ought necessarily to fulfil certain objective prerequisites, before such organization comes into being as such, and begins to exercise its functions. The organization at issue ought to have been created by an agreement between the States concerned, ought to have a permanent organic structure whereby it is able to express its own views (not necessarily the same as those of the individual member States that compose it), and ought to possess its own common purposes to be fulfilled precisely in the faithful exercise of its functions. It is the case of CARU, as an international entity, standing beyond the strictly inter-State dimension.

XIII. Fundamental principles as substratum of the legal order itself

191. The general principles of law have thus inspired not only the interpretation and the application of the legal norms, but also the law-making process itself of their elaboration. They reflect the opinio juris, which, in its turn, lies on the basis of the formation of Law. Such principles mark presence at both national and international levels. There are fundamental principles of law which identify themselves with the very foundations of the legal system, revealing the values and ultimate ends of the international legal order, guiding it, protecting it against the incongruencies of the practice of States, and fulfilling the necessities of the international community[FN172].

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[FN172] G. Cohen-Jonathan, "Le rôle des principes généraux dans l'interprétation et l'application de la Convention Européenne des Droits de l'Homme", in Mélanges en hommage à L.E. Pettiti, Bruxelles, Bruylant, 1998, pp. 192-193.
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192. Such principles, as expression of an objective "idea of justice", have a universal scope, requiring the observance of all States, and securing the unity of Law, as from an objective "idea of justice". It is evident that those principles of law do not depend on the "will", nor on the "agreement", nor on the consent, of the subjects of law; they touch on the foundations of the necessary law of nations. Above the will of subjects of law, stands their conscience, as the ultimate material source of all Law.

193. If, by chance, any doubts are raised as to the extent of application of the fundamental principles which permeate the whole international legal order, it is the function of the jurist to clarify such doubts and not to perpetuate them, so that Law may accomplish its fundamental function of providing justice in the settlement of a dispute. It is certain that the norms are the ones juridically binding, but when they move away from the principles, their application is likely to lead to breaches of the rights at stake and to the occurrence of distortions and injustices, and violations of the legal order at issue itself.

194. Turning to the present case of the Pulp Mills, the question may now be asked: had the observance of the precautionary principle prevailed all the time, would that have made a difference in the contentious situation now settled be the Court by means of its present Judgment? To my mind, most likely, yes. May I refer, in this respect, to the attitude of the two contending parties as well as of the Court itself. Had the precautionary principle been kept in mind, all the time, by the two States concerned, including in the Ministerial Meeting of 2 March 2004, which led to their "understanding" (as minuted by CARU) examined in the present Judgment (paras. 125-131), this "understanding" – which in a way circumvented or by-passed the procedure laid down in Articles 7-12 of the 1975 (in particular Article 7) – would in all probability not have taken place.

195. That "understanding", which made tabula rasa of the statutory procedure, became the source of much subsequent misunderstanding between Argentina and Uruguay. Had the two parties kept in mind the precautionary principle from the start, the so-called "understanding" would in all probability not have materialized, to the benefit of the integrity of the 1975 Statute and its scheme of environmental protection of the River Uruguay. In any case, shortly after the distraction of that episode, Argentina and Uruguay realized the importance of the precautionary principle, and duly invoked it – though with distinct interpretations – in the proceedings before the ICJ in the present case of the Pulp Mills (cf. supra).

196. Turning attention now to the attitude of the Court itself, if it likewise had also kept in mind, all the time, the precautionary principle (which it did not), it would have reached a decision distinct from the one it took on 13 July 2006, and would have, in all probability, ordered or indicated the requested provisional measures of protection (to be effective until today, 20 April 2010, date of the present Judgment on the merits of the Pulp Mills case). This would have rendered moot all the subsequent discussions and the unnecessary tension surrounding the so-called "no-construction obligation", which also drew the attention of the Court in the present Judgment (paras. 152-154). These points suffice to single out the relevance of keeping in mind the precautionary principle all the time, when it comes to the protection of the environment.

197. Fundamental principles are indeed indispensable, they conform the substratum of the legal order itself, being prior and superior to the will or consent of individual subjects of law. They lie on the foundations of the jus necessarium, as propounded by the founding fathers of International Law. Already in the early XVIIth century, Francisco Suârez, in his De Legibus, ac Deo Legislatore (1612), beheld the law of nations as a "most necessary" law, grounded on "certain self-evident principles of conduct" of natural law (para. 18), requiring everyone to "live rightly", so as to preserve "peace and justice", bearing in mind the "common good" (para. 19). In his lucid and elegant warning (as to human fallibility, egoism and wickedness), "it is necessary" that, whatever pertains to the common good, which "should be accorded particular care and observance", as

"individuals have difficulty in ascertaining what is expedient for the common good, and, moreover, rarely strive for that good as a primary object; so that, in consequence, there was a necessity for human laws that would have regard for the common good by pointing out what should be done for its sake and by compelling the performance of such acts" (para. 19)[FN173].

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[FN173] English translation of F. Suârez's De Legibus, acDeo Legislatore (1612), published in the collection The Classics of International Law (edited by J. Brown Scott, 1944)
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198. Later on, in the second half of the XVIIIth century, in the age of enlightenment, Christian Wolff coined, in a definitive way, the expression jus necessarium, in his Jus Gentium Methodo Scientifica Pertractatum (1164), likewise grounded on natural law, conferring onto the law of nations the attributes of being "necessary and immutable" (paras. 4-6). All nations are thereby given "mutual assistance in perfecting themselves" and their condition, and fostering "consequently the promotion of the common good" (para. 8). Another classic of that epoch to address the jus necessarium was Vattel's Le droit des gens, ou principes de la loi naturelle (1158); that jus was conceptualized as referring to a law of nations which contained precepts of natural law, the observation of which no nation could escape from (paras. 7-8).

199. In the entirely different world wherein we live nowadays, who would deny that the conservation of the environment is part of the jus necessarium? Who would deny that on this depends ultimately the very survival of humankind? The world has much changed – ever since the days of Suârez, Wolff and Vattel – but the necessity to strive towards the promotion of the common good is felt as acutely today as it was in times past. The world has much changed, but human aspirations towards the improvement of the human condition remain the same. It is human conscience that awoke and reckoned the jus necessarium, and has persevered in the search for truth, peace and justice, on the basis of the ineluctable relationship between the legal order and the ethical order.

200. Fundamental principles are consubstantial to the international legal order itself, wherein they give expression to the idea of an "objective justice", proper of natural law (cf. supra). Principles of international law shed light into the interpretation and application of International Law as a whole, they pertain to the very substratum of this latter, and are identified with the very foundations of the international legal system. They permeate every legal system. Their continuing validity is beyond question. Principles of international law are essential to humankind's quest for justice, and of key importance to the endeavours of construction of a truly universal International Law.

XIV. Prima principia: the axiological dimension

201. Every legal system has fundamental principles, which inspire, inform and conform their norms. It is the principles (derived etymologically from the Latinprincipium) that, evoking the first causes, sources or origins of the norms and rules, confer cohesion, coherence and legitimacy upon the legal norms and the legal system as a whole. It is the general principles of law (prima principia) which confer to the legal order (both national and international) its ineluctable axiological dimension; it is they that reveal the values which inspire the whole legal order and which, ultimately, provide its foundations themselves[FN174]. This is how I conceive the presence and the position of general principles in any legal order, and their role in the conceptual universe of Law.

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[FN174] Cf., to this effect, IACtHR, Advisory Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Migrants, of 17.09.2003, Concurring Opinion of Judge A. A. Cançado Trindade, paras. 44-58.
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202. General principles of law entered into the legal culture, with historical roots which go back, e.g., to Roman law, and came to be linked to the very conception of the democratic State under the rule of law, mainly as from the influence of the enlightenment thinking (pensée illuministe). Despite the apparent indifference with which they were treated by legal positivism (always seeking to demonstrate a "recognition" of such principles in positive legal order), and despite the lesser attention dispensed to them by the reductionist legal doctrine of our days, yet one will never be able to prescind from them.

203. From the prima principia the norms and rules emanate, which find in them their proper meaning. General principles of law are thus present in the origins of Law itself, and disclose the legitimate ends to seek: the common good (of all human beings, and not of an abstract collectivity), the realization of justice (at both national and international levels), the preservation of peace. Contrary to those who attempt – in my view in vain – to minimize them, I understand that, if there are no principles, nor is there truly any legal system at all.

204. The identification of the basic principles has accompanied pari passu the emergence and consolidation of all the domains of Law, and all its branches (constitutional, civil, civil procedural, criminal, criminal procedural, administrative, and so forth). This is so with Public International Law itself, as well as with some of its domains (of protection), such as International Environmental Law, the International Law of Human Rights, International Humanitarian Law, International Refugee Law, and with International Criminal Law, the Law of the Sea, the Law of International Watercourses, the Law of Outer Space, among others. However circumscribed or specialized may one of its domains may, its basic principles can there be found (cf. infra), assuring the cohesion and unity of the Law as a whole. There is no "fragmentation" here (a most unfortunate term, and surely one to be avoided and discarded), but rather a reassuring expansion of contemporary International Law, asserting its aptitude to regulate relations not only at inter-State, but also at intra-State, levels.

205. Some of the basic principles are proper to certain areas of Law, others permeate all areas of Law. The corpus of legal norms (national or international) operates moved by the principles, some of them ruling the relations themselves between human beings and the public power[FN175]. Principles enlighten the path of legality as well as legitimacy. Hence the constant reaffirmation or restoration, pursuant to the evolving natural law thinking, of a standard ofjustice, heralded by general principles of law, whereby positive law has come to be evaluated. This perennial resurgence of the natural law outlook[FN176] – never fading away – has been much contributing to the affirmation and consolidation of the primacy, in the order of values, of the obligations pertaining to regimes of protection (of the human person and of the environment).

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[FN175] As the principles of natural justice, of the rule of law, of the rights of the defence, of the right to the natural judge, of the independence ofjustice, of the equality of all before the law, of the separation of powers, among others.
[FN176] Cf., e.g., L. Le Fur, "La théorie du droit naturel depuis le XVIIe. siècle et la doctrine moderne", 18 Recueil des Cours de l'Académie de Droit International de La Haye [RCADI] (1927) pp. 297-399; A. Truyol y Serra, "Théorie du Droit international public – Cours général", 183 RCADI (1981) pp. 142-143; A. Truyol y Serra, Fundamentos de Derecho Internacional Publico, 4th. rev. ed., Madrid, Tecnos, 1977, pp. 69 and 105.
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206. The international legal profession in our days, in its large majority, unfortunately admits its adherence to legal positivism. Those who do so, seek to qualify their positivist standing by adding an adjective before it: there are those who are proud to call themselves "modern" or "post-modern" positivists – whatever that means – apparently failing to realize that, by thus labeling themselves, they are doomed to be quickly outdated, surpassed by the implacable and merciless onslaught of time. Others add distinct and self-pleasing adjectives, as if trying to exorcise a priori any future guilt feelings for eventual injustices committed de jure. Paraphrasing Isaiah Berlin, it is imperative to keep on swimming against the current, to keep on upholding firmly the application of general principles of law, in addition to the pertinent positive law.

XV. "General Principles of Law" as indicators of the status conscientiae of the international community

207. To keep on considering general principles of law as encompassing only those of a domestic origin corresponds, in my view, to a static outlook of the formal "sources" of international law, in respect of the formulation in 1920 of Article 38 of the PCIJ Statute, regarded as immutable and sacrosanct. Positivist legal thinking has always suffered from this inescapable shortsightedness, in time and space; it faces unsurmountable difficulties to accompany the evolution of International Law (in such new domains as, e.g., International Environmental Law, and others), and is incapable to behold universalism. Its limitations are to be regretted, if not pitied.

208. It can be seen, from the considerations above, that the view whereby general principles of law were only those found in foro domestico corresponded only to one conception (proper of analytical positivism) which prevailed 90 years ago, and which was challenged by learned jurists of those days. Fortunately, it has never been unanimity. This appears – in my own perception – most commendable, for when everyone is thinking alike, not everyone – if not any one – is really thinking at all. Attempts to identify general principles of law only within given national systems (or in each of them individually), besides being a static exercise, makes abstraction of the time dimension, and renders it impossible to advance towards a universal international law.

209. General principles of law (prima principia) confer upon the legal order itself – both national and international - its ineluctable axiological dimension (cf. supra). It is those principles that reveal the values which inspire the whole legal order, and which, ultimately, provide its foundations themselves. The identification of the basic principles has accompanied pari passu the emergence and consolidation of all the domains of Law. International Environmental Law provides a good illustration in this respect.

210. Can we, for example, conceive of International Environmental Law without the principles of prevention, of precaution, and of sustainable development, added to the long-term temporal dimension of inter-generational equity? Not at all, in my view. Can we dwell upon the International Law of Human Rights without bearing in mind the principles of humanity, of the dignity of the human person, of the inalienability of human rights, of the universality and indivisibility of human rights? Certainly not. Can we consider International Humanitarian Law without the principles of humanity, of proportionality, of distinction[FN177]? Surely not. Can we approach International Refugee Law without taking due account of the principles of non-refoulement, and of humanity? Not at all.

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[FN177] Between combatants and the civil population – principle whereby the election of methods or means of combat is not unlimited. In International Humanitarian Law, e.g., the 1949 Geneva Conventions and their Protocols of 1977, essentially victim-oriented, are inspired above all by the overriding principle of humanity, which calls for respect to the human person in any circumstances and at all times.
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211. Can we think of International Criminal Law without keeping in mind the principles of legality[FN178], and of presumption of innocence? Certainly not. Can we consider the Law of the Sea without taking note of the principles of peaceful uses (of the sea), of equality of rights (in the high seas), of peaceful settlement of disputes[FN179], of freedom of navigation and of innocent passage, of sharing of benefits (of deep-sea mining), of protection of the seas for future generations? Not at all. Can we consider the Law of Outer Space without paying regard to the principles of non-appropriation, of peaceful uses and ends, of freedom of access and of scientific research, of sharing of benefits (in space exploration)? Surely not.

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[FN178] Nullum crimen sine lege, nulla poena sine lege.
[FN179] And of equidistance and of special circumstances (in delimitation of maritime spaces).
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212. And the examples multiply, to the same effect, if we move on to other domains. Whenever general principles are overlooked, wrongs or injustices are bound to be committed. In my conception, they conform an autonomous formal "source" of International Law, that no international tribunal can minimize or overlook. Their proper consideration cannot at all be limited to verifying whether they have entered the realm of international law through custom or treaties. They disclose the axiological dimension (supra) of the applicable law, besides being indicators of the degree of evolution of the status conscientiae of the international community as a whole.

213. If we can detect cultural manifestations, in previous uses and customs, or even in ancient legal systems, linking environmental concerns to those practices[FN180], so much the better, as this will reinforce the cause of the applicability of principles in the evolving International Environmental Law of our times, in response to those environmental concerns. I have already referred to four cases in Latin America, decided by the IACtHR, marked by cultural density (cf. supra), disclosing the utmost relevance of the preservation of cultural identity (of peoples in their natural habitat).

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[FN180] E.g., those concerns linked to ancient irrigation practices in distinct regions; cf. ICJ, Gabcikovo-Nagymaros Project case (Hungary v. Slovakia), I.C.J. Reports (1997), Separate Opinion of Judge C. G. Weeramantry, pp. 97-111.
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214. But what happens if a new domain of International Law emerges in an accelerated way, without apparent traces in support of the corresponding emerging principles in previous cultural manifestations, or uses and customs, or practices, of the kind? This is what happened with the emergence and growth of the domain of Outer Space Law, in an accelerated way, as from the sixties onwards. The search for the identification and formulation of the corresponding principles began promptly, on the occasion. The current and continuing expansion of the scope of International Law ratione materiae calls definitively for a more careful consideration of legal principles, rather than their minimization.

215. To recall two further examples, among others, within the United Nations system as a whole, the International Labour Organization [ILO] itself, driven by functional necessity, sought to identify – to guide its operation in the area - the fundamental principles and rights in work, by means of a Declaration adopted in June 1998. More recently, in its turn, UNESCO has devoted its endeavours towards the elaboration, and the adoption, of its 2005 Universal Declaration on Bioethics and Human Rights, turned in particular to the identification and formulation of principles applicable in this new domain. My point is that, initiatives of the kind, rightly aim to conform the jus necessarium, in the respective domains of legal knowledge.

216. General principles of law have in fact been in constant review in the law of the United Nations. The ICJ, being "the principal judicial organ of the United Nations" (Article 92 of the Charter of the United Nations), should, in my view, devote more attention to them in the exercise of its contentious function. In my conception, they orient the interpretation and application of the norms and rules of this legal order, be them customary or conventional, or set forth by resolutions of international organs. General principles of law may further be resorted to in the identification of opinio juris itself, taking this latter not strictly as a constitutive element of custom, but, more amply, as an indication of the status conscientiae of the members of the international community as a whole.

217. Last but not least, it is not surprising to find that voluntarist-positivists, who have always attempted to minimize the role of general principles of law, have always met the opposition of those who sustain the relevance of those principles, as ensuing from the idea of an objective justice, and guiding the interpretation and application of legal norms and rules. This is the position that I sustain. It is the principles of the international legal system that can best ensure the cohesion and integrity of the international legal system as a whole. Those principles are intertwined with the very foundations of International Law, pointing the way to the universality of this latter, to the benefit of humankind. Those principles emanate from human conscience, the universal juridical conscience, the ultimate material "source" of all Law.

XVI. Epilogue

218. The ICJ, in settling peacefully the disputes submitted to it, is perfectly entitled to resort to general principles of law (Article 38 (1) (c) of its Statute), and should do so; if it, furthermore, wishes, in the faithful exercise of its functions, not only to settle the disputes brought into its cognizance but concomitantly to foster the progressive development of International Law – as in my view it should – it will have to devote greater attention to those general principles, encompassing, as they surely do, the principles of International Law as a whole, and the principles proper to particular domains of International Law.

219. In my own conception, there is epistemologically no reason at all to take account of, and consider, legal principles only if, and when, subsumed under customary or conventional international law. The inclination, noticeable in most of contemporary expert writing, to do so, is, in my view, conceptually flawed. General principles of law constitute an autonomous formal "source" of International Law, and orient the evolution of customary and conventional international law. Contemporary International Environmental Law bears witness of that. In addressing this matter, the intellectual poverty of the tendency, of a great part of contemporary international legal doctrine, to privilege legal techniques to the detriment of legal principles, should not be embraced by this Court. Quite on the contrary, it should be discarded by it, giving pride of place to legal principles, comme il faut.

220. In sum, the applicable law in the present case of the Pulp Mills, is, in my understanding, not only the 1975 Statute of the River Uruguay, but the Statute together with the relevant general principles of law, encompassing the principles of International Environmental Law. These latter are, notably, the principles of prevention, of precaution, and of sustainable development with its temporal dimension, together with the long-term temporal dimension underlying inter-generational equity. The Hague Court, also known as the World Court, is not simply the International Court of Law, it is the International Court of Justice, and, as such, it cannot overlook principles.

(Signed) Antônio Augusto CANÇADO TRINDADE.


DECLARATION OF JUDGE YUSUF

1. I concur in the Judgment, but have some reservations regarding the manner in which the Court decided to handle the abundant factual material presented by the Parties. I am of the view that the Court should have had recourse to expert assistance, as provided in Article 50 of its Statute, to help it gain a more profound insight into the scientific and technical intricacies of the evidence submitted by the Parties, particularly with regard to the possible impact of the effluent discharges of the Orion (Botnia) mill on the living resources, quality of the water and the ecological balance of the River Uruguay.

2. The Parties to the present case have submitted to the Court extensive and complex technical and scientific material related to effluent discharges, water quality, chemical substances, the capacity of the river to receive contaminants, its hydrodynamic and geomorphological characteristics, and the parameters used for determining the existence of pollution. In addition, they provided voluminous data, gathered by their respective experts and consultants, on the results of their monitoring before and after the start of the operation of the mill, using different methods and modelling approaches. This factual information relates to a wide range of scientific and technical fields including hydrology, hydrobiology, river morphology, water chemistry, soil sciences, ecology and forestry.

3. Furthermore, both in the written and oral pleadings, the Parties presented many contradictory assertions and divergent approaches in terms of data collection and scientific methodologies for their interpretation. Thus, for example as regards the flow of the river, the hydrodynamic data presented by the Parties proved very difficult to compare because they were derived from monitoring at different stations, at different depths, and on different dates. Similarly, with respect to water quality, the Parties used different sampling techniques at different locations and depths, to obtain the data presented to the Court, thus complicating the comparability of the results submitted by them.

4. Notwithstanding these factual complexities, the Court states, in paragraph 168 of the Judgment, with regard to the manner in which this material is to be handled by it, that:
"It needs only to be mindful of the fact that, despite the volume and complexity of the factual information submitted to it, it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate. Thus, in keeping with its practice, the Court will make its own determination of the facts, on the basis of the evidence presented to it, and then it will apply the relevant rules of international law to those facts which it has found to have existed."

5. It is of course true that it is the responsibility of the Court to determine the facts and to assess their probative value, but this does not prevent it from taking advantage of its powers to order an enquiry or to seek expert opinion in the handling of the complex technical and scientific material submitted to it in this case. The Court, in order to exercise its function of resolving disputes, needs to ensure not only to be in possession of all the available facts relevant to the issues before it, but also to understand fully their actual meaning for the proper application of the law to those facts. The rationale behind the provisions on enquiry and the seeking of an expert opinion in the Statute and in the Rules of Court is to allow the Court to obtain the necessary assistance and support in acquiring such full knowledge of the facts.

6. This case offered a unique opportunity for the Court to use the powers granted to it by Article 50 of its Statute, as well as by Article 67 of the Rules of Court. It is a case where the decisions and conclusions of the Court largely depend on a correct appreciation of the scientific and technical facts. It is true that on many occasions in the past the Court was able to resolve complex and contested factual issues without resorting to Article 50 of the Statute. Yet, in a case such as this one concerning the protection of the environment and the prevention of pollution, specialized scientific expertise can provide the Court with the insights necessary to make a thorough appraisal of the merits of the scientific and technical material submitted by the Parties.

7. It cannot be expected that expert opinions or scientific assessments commissioned by the Court will always arrive at uniform conclusions, but the adversarial process by which the Parties are given an opportunity to comment on such opinions provides the Court with further insight into the relevance and significance not only of the factual material presented by the Parties, but of the expert opinion as well. Moreover, the use of an enquiry or an expert report by the Court has the advantage of enhancing the confidence of the Parties in the technical evaluation by the Court of the factual and scientific information provided by them and ensuring transparency.

8. Surely, the grounds invoked by the Court, in the Nicaragua case[FN1], not to have recourse to its power under Article 50 of the Statute do not apply to this case, there being no similar practical difficulties regarding the River Uruguay. Rather, the reluctance of the Court in the present case is reminiscent of that commented upon by Judge Wellington Koo, almost 60 years ago, in a dissenting opinion:

"All the foregoing questions are of a technical character and call for an independent expert or experts to supply reliable answers. I am of the opinion that the Court would have been well advised, under Articles 44 and 50 of the Statute, to send its own expert or experts to investigate on the spot and make a report of their observations and recommendations, as was done in the Corfu Channel case (I.C.J. Reports 1949). Such a report would have been of great assistance to the Court in deciding the case by law on the basis of all the relevant facts of a technical as well as other character. I for one feel unable to reach a final conclusion satisfactory to myself without knowing the answers to the technical questions which I have defined above and which, in my view, bear a vital importance for a correct determination of one of the crucial issues on the present case." (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 100, para. 55.)

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[FN1] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 61.
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9. Similarly, in his separate opinion on the Kasikili/Sedudu Island (Botswana/Namibia) case, Judge Shigeru Oda made the following observation:

"The criteria for determining the 'main' channel may well be settled by law, with the assistance of scientific knowledge, but the determination of the 'main channel' as a boundary by employing the said criteria, in any specific geographical situation, is far from being a legal function. I would recall that, at the time of the meeting in Kasane of the Presidents of Botswana and Namibia in May 1992, the two States tried to settle the matter as a technical problem that could be solved by the expertise of technical experts (see paragraphs 13 and 14 of this opinion). The Judgment deals with these two matters in its paragraphs 20 to 40 and attempts to rule on them, relying only on the information given in the written and oral pleadings by the respective Parties, but without the benefit of objective scientific knowledge, which it could have obtained itself but chose not to." (Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1119, para. 6; emphasis in the original.)

10. In view of the persistent reticence of the Court to use the powers conferred upon it by Article 50 of the Statute, except in two cases[FN2], the question arises as to whether there is a risk that the resort to an expert opinion may take away the role of the judge as the arbiter of fact and therefore undermine the Court's judicial function? My answer is in the negative. First, it is not for the expert to weigh the probative value of the facts, but to elucidate them and to clarify the scientific validity of the methods used to establish certain facts or to collect data. Secondly, the elucidation of facts by the experts is always subject to the assessment of such expertise and the determination of the facts underlying it by the Court. Thirdly, the Court need not entrust the clarification of all the facts submitted to it to experts in a wholesale manner. Rather, it should, in the first instance, identify the areas in which further fact-finding or elucidation of facts is necessary before resorting to the assistance of experts.

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[FN2] In the Corfu Channel case, the Court resorted to the appointment of experts at two different stages in the proceedings: Corfu Channel (United Kingdom v. Albania), Order of 17December 1948, I.C.J. Reports 1947-1948, p. 124 (naval expertise); and Corfu Channel (United Kingdom v. Albania), Order of 19 November 1949, I.C.J. Reports 1949, p. 237 (amount of compensation). See also, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Appointment of Expert, Order of 30 March 1984, I.C.J. Reports 1984, p. 165.
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11. As was observed by the Arbitral Tribunal in the Laguna del Desierto case:

"When the question relates to whether a given industrial activity produces harmful polluting effects for third parties, or whether the collapse of a building was due to faulty construction, or whether a product has the chemical composition stated in its packaging, the judge has recourse to an expert on the subject and asks him to make analyses and studies and produce conclusions. It is absurd to think that the judge has delegated his responsibility to the expert." (United Nations, Reports of International Arbitral Awards (RIAA), Application for revision and subsidiary Interpretation of the Award of 21 October 1994 submitted by Chile (Argentina, Chile), 13 October 1995, Vol. XXII, p. 162, para. 40.)

12. Thus, although experts may assist the Court to develop a finer grasp of the scientific and technical details of factual issues arising in the case, it always remains the ultimate responsibility of the judge to decide on the relevance and significance of those facts to the adjudication of the dispute.

13. In light of the above, it is my view that there is reason for concern when in a case as factually and scientifically complex as the present one, the Court fails to use its power to seek the assistance of a commission of enquiry or an expert opinion under Article 50 of the Statute, since errors in the appreciation or determination of facts can substantially undermine the credibility of the Court, and discourage parties to disputes involving scientific and technological issues from turning to the Court.

14. As States continue to bring cases involving complex scientific and technological aspects before the Court, they will need to see that the facts related to their case are fully understood and appreciated by the Court. It would therefore serve the Court well in the future to make better use of the powers granted to it by its Statute to deal with fact-intensive and scientifically complex cases and to develop, for that purpose, a clear strategy which would enable it to assess the need for an expert opinion at an early stage of its deliberations on a case.

(Signed) Abdulqawi Ahmed YUSUF.


Separate opinion of Judge Greenwood

1. I agree with most of the Judgment in the present case, in particular, with its treatment of what I regard as the most important issue before the Court, namely, whether Uruguay has violated its substantive obligations under the Statute of the River Uruguay. I agree that, on the evidence before the Court, Argentina has not established that there has been such a violation and I concur in the Court's reasoning on this issue. I also agree that Uruguay has violated its procedural obligations under the Statute. Nevertheless, while I have voted for operative paragraph 1 of the Judgment, I consider that the violation is not as extensive as that set out in the reasoning of the Court. In this separate opinion, I wish briefly to explain why I consider that Uruguay's procedural breach is more limited. I also wish to add a few remarks concerning the evidence which the Parties have placed before the Court, the treatment of that evidence by the Court and the continuing nature of the obligations of the Parties under the Statute.

A. Uruguay's breach of the Procedural Obligations under the Statute

1. The Procedure created by Articles 7 to 12 of the Statute

2. Articles 7 to 12 of the Statute create a machinery of notification and consultation which must be followed in respect of "any works which are liable to affect navigation, the régime of the river or the quality of its waters". That machinery operates in four stages. First, the party proposing to carry out or authorize the works must inform CARU, which has to take a decision on a preliminary basis as to whether or not the works might cause significant damage to the other party. If CARU decides that they will not cause such damage, then it is implicit in Article 7 that the procedure comes to an end and the party concerned may proceed with the works. This capacity to give a favourable preliminary decision is the only sense in which CARU may be said to "authorize" works (although the Statute does not describe CARU's role in those terms).

3. Secondly, if CARU does not take a favourable decision under Article 7 (either because its preliminary conclusion is that the works might cause significant damage, or because CARU is unable to reach a decision at all), then Article 7 (2) requires the party proposing the works to notify the other party of its plans through CARU. Article 7 (3) stipulates what information must be supplied. Under Article 8, the other party then has 180 days in which to acquiesce in, or object to, the proposed works. That period may be extended by CARU. Under Article 9, if the notified party has not objected by the end of this period, then the notifying party may carry out or authorize the works planned. On the other hand, if the notified party does object within this period, then the parties must move to the third stage of the procedure.

4. Thirdly, if the notified party does object within the 180 days allowed in the second stage of the procedure, then Articles 11 and 12 provide that the parties have another 180 days in which to try to reach agreement. It is implicit in the Statute that, during this third stage, each party is under an obligation to negotiate in good faith in an attempt to reach such an agreement.

5. Lastly, if the parties fail to reach agreement during the 180 days of the third stage, Article 12 provides that the "procedure indicated in chapter XV shall be followed". This last provision is not entirely straightforward. Chapter XV contains only one provision — Article 60 — which gives jurisdiction to the Court in respect of disputes concerning the interpretation or application of the Statute. It is plain, therefore, that, if the parties are unable to agree, the matter can be referred to the Court. Article 60, however, gives the Court jurisdiction only to resolve disputes regarding the interpretation or application of the Statute and the earlier Treaty of 1973. Consequently, where a party commences proceedings following a failure to agree during the third stage of the procedure, the Court has to determine whether the proposed works will, if carried out, contravene any of the substantive obligations in the Statute. It is here that the procedural obligations under Articles 7 to 12 are clearly linked to the substantive standards in other provisions (most noticeably Article 41 (a)).

6. Two further observations need to be made. The first is that the procedure is essentially designed to achieve agreement between the two parties. The role of CARU is secondary. Although CARU supplies the mechanism through which the notification and provision of information is to take place, its decision-making role is limited to taking a preliminary decision under Article 7. If that preliminary decision is negative, then the second stage of the procedure comes into operation and the matter is one for bilateral dealings between the parties. In the second stage of the procedure, CARU's role is merely to provide a channel for communication and to take decisions on whether or not to grant an extension of time under Article 8 (4). Similarly, in the third stage, it is for the parties to negotiate directly with one another.

7. Only if CARU takes a favourable preliminary decision (i.e., if it decides that the proposed works will not cause significant damage to the other party) will its decision have a substantive effect. In such a case, the effect of the CARU decision is to terminate the procedure and leave the notifying party free to proceed with the works. Even in that case, however, it needs to be remembered that CARU works on the basis of a consensus between the two parties. Under Article 55 of the Statute, each of the delegations of Argentina and Uruguay has one vote. Since there is no mechanism for breaking a deadlock, CARU can take a decision only if the two delegations (and thus the two States) are agreed. It follows that CARU cannot take a favourable preliminary decision on a party's proposed works if the other party objects. The procedure for consent and negotiation created by Articles 7 to 12 is thus essentially bilateral, rather than institutional (although other aspects of CARU's role — in particular, in relation to monitoring — have more of an institutional character).

8. The second consideration is that the procedural obligations in Articles 7 to 12 do not give either party a power of veto. If the party wishing to carry out the works cannot secure the agreement (or, at least, the acquiescence) of the other party (either through the summary first stage procedure in Article 7 or at either of the second or third procedural stages), then it may nevertheless proceed with the works. If it does so, it will not be violating the procedural provisions, although it runs the risk that the other party will refer the matter to the Court under Article 60 and that the Court will hold that the works violate the substantive provisions of the Statute and require it either to restore the status quo or to pay damages.

9. The characterization of these provisions as procedural should not be taken as in any way minimizing their importance. On the contrary, they are an important feature of the system for ensuring the optimum and rational utilization of the resources of the river through co-operation between the parties. It follows that a breach of these procedural obligations is a serious matter. Moreover, while the parties can agree to depart from all or part of the procedures laid down in Articles 7 to 12, it is not open to either party unilaterally to bypass those procedures or to declare them inapplicable.

2. Uruguay's failure to comply with Article 7

10. In the present case, I agree with the Court that Uruguay failed to inform CARU of the proposed works at the time when it was required by Article 7 (1) of the Statute to do so. In my opinion, a party is obliged to inform CARU of proposed works once two conditions are met. First, that party must have in its possession the information necessary to enable CARU to make the preliminary assessment provided for in Article 7 (1). That assessment is far more limited than the assessment envisaged in Article 7 (3). Whereas Article 7 (3) speaks of an assessment of the probable impact of the proposed works, Article 7 (1) envisages only an assessment of whether those works "might cause significant damage to the other party", i.e., it is concerned only with the possible impact of the works. Moreover, the assessment envisaged by Article 7 (1) is to be carried out within a period of only thirty days. Accordingly, less information is required for the Article 7 (1) assessment than for that under Article 7 (3), and it is likely to be available at an earlier stage in the planning process. Secondly, a party cannot be under an obligation to notify CARU of proposed works until that party plans to carry out those works; in other words it must have formed an intention, however provisional, that the work should proceed beyond the drawing board. Once those two conditions are met, the party concerned is obliged to inform CARU of the plans in accordance with Article 7 (1).

11. I agree that that stage was reached in the case of both the CMB (ENCE) and Orion (Botnia) proposals before there was any agreement between Argentina and Uruguay to engage in bilateral discussions and that Uruguay nevertheless did not inform CARU. Uruguay was, therefore, in breach of its obligations under Article 7 (1) of the Statute.

12. I also agree that Uruguay was in breach of its obligations to notify Argentina under Articles 7 (2) and (3). The Judgment concludes, in paragraph 121, that Uruguay violated these provisions because, in each case, it issued the initial environmental authorization before it supplied Argentina with the information required by Article 7 (3). In the case of the Orion (Botnia) mill, the initial environmental authorization was granted some six months before Uruguay began to transmit the required information. The grant of an initial environmental authorization presupposes, if the State concerned is conscientious in its application of the requirements of the Statute, that it has at that stage the information necessary to make an assessment of the probable environmental impact of the proposed works. The duty to notify the other party is, therefore, applicable no later than this stage.

3. The absence of any other procedural violation

13. I do not agree, however, with the conclusion, in paragraphs 143 to 150 of the Judgment, that Uruguay violated its obligations under the Statute by the steps which it took to authorize work on the two mills before the end of the third, negotiation, stage of the procedure in Articles 7 to 12. There is no doubt that the Statute limits what steps a party may lawfully take in respect of proposed works during that stage. First, Article 9 provides that "[i]f the notified party raises no objections or does not respond within the period established in Article 8, the other party may carry out or authorize the work planned". It is implicit in that provision that the party may not carry out or authorize the work planned during the period established in Article 8 (the second stage) or, if the notified party does object within that period, during the period reserved for negotiations under Articles 11 and 12 (the third stage). Secondly, as the Court points out, the parties have a duty to negotiate in good faith during the third stage of the procedure and for one party to take steps to carry out or authorize the carrying out of the proposed works while the negotiations of which those works are the subject are taking place may be contrary to that duty. I will consider each of those limitations in turn.

14. In order to understand the scope of the implied prohibition in Article 9, it is necessary to consider the purpose of the procedures established by Articles 8 to 12. These are designed to ensure that one party to the Statute does not carry out works the probable impact of which will be to cause significant adverse effects (as defined elsewhere in the Statute) upon navigation, the régime of the river or the quality of its waters without first engaging in the information and negotiation process prescribed by the Statute. It would defeat that purpose if that party were to take steps which themselves had such a probable impact while the process was still running its course. The implied restriction in Article 9 is designed to prevent that from occurring. However, engaging in preliminary steps such as clearing vegetation from a proposed site, levelling the land or preparing foundations is unlikely in itself to have any adverse impact on navigation, the régime of the river or the quality of its waters and, if it does not do so, then I cannot see how it would run counter to the purpose of this part of the Statute. Nor would taking such steps naturally be considered as "carrying out" the proposed works, since that term suggests a far more extensive and complete operation. Of course, the party which takes such preliminary steps runs the risk that they may prove to have been wasted if the proposed works are not, in the end, carried out, but that does not mean that the taking of those steps is itself a violation of the Statute.

15. The implied requirement not to "authorize the work planned" must, in my view, be read in the same way. As the history of the Orion (Botnia) mill demonstrates, the process of authorization will frequently have many different steps. What Article 9 seems to me to prohibit, during the second and third stages of the procedure laid down by the Statute, is granting the authorization actually to carry out the work planned. That, again, would exclude the authorization of preparatory steps, provided that those steps did not themselves involve the risk of one or more of the effects described in the Statute.

16. Secondly, the duty to negotiate in good faith, as paragraphs 145 and 146 of the Judgment point out, is firmly rooted in general international law. While that duty does not amount to a requirement that the negotiations lead to any particular outcome, it does require that the parties to the negotiations must conduct themselves in such a way that the negotiations are meaningful (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85). In the context of negotiations under Article 12 of the Statute, I agree with what is said in paragraph 147 of the Judgment, that

"there would be no point to the co-operation mechanism provided for by Articles 7 to 12 of the 1975 Statute if the party initiating the planned activity were to authorize or implement it without waiting for that mechanism to be brought to a conclusion. Indeed, if that were the case, the consultations and negotiations between the parties would no longer have any purpose."

However, I do not agree that taking preparatory steps, such as clearing vegetation from the proposed site of a mill, amounts to the "implementation" of the planned activity. The conclusion, in paragraph 148 of the Judgment, that such preparatory action constitutes "an integral part of the construction of the planned mills" and therefore must necessarily be seen as incompatible with the duty to negotiate in good faith is unjustified. If both parties are negotiating in good faith, the outcome may well be an agreement that the proposed works can proceed (albeit, perhaps, with modifications). Moreover, if the negotiations do not result in agreement within the prescribed 180-day period, then, as paragraphs 151 to 158 of the Judgment make clear, the party which has proposed those works may proceed subject to the risk that the other party may bring the matter to the Court which may conclude that the works contravene the substantive provisions of the Statute. In my opinion, a party can engage in good faith in negotiations which are meaningful while still taking preparatory steps to ensure that it is ready to proceed with the works if the negotiations result in agreement that they may be carried out, or if no agreement is reached within the prescribed period. To take such steps is not, in itself, contrary to the duty to negotiate in good faith. Only if the negotiating record as a whole shows that the party concerned did not intend to engage in meaningful negotiations would the Court be justified in concluding that that duty had been breached.

17. The question, therefore, is whether the steps which Uruguay authorized before the end of the period for negotiation contravened the prohibition implicit in Article 9 or the duty to negotiate in good faith. In my opinion, they did not.

18. In the case of the CMB (ENCE) mill, construction never took place. Neither the initial environmental authorization, issued on 9 October 2003, nor the environmental management plan approval, granted on 28 November 2005, was an authorization to "carry out" the project. The initial environmental authorization did not permit construction of the mill. Further permits were required before that could be done. The lengthy process followed in the case of the Orion (Botnia) mill, which — unlike CMB (ENCE) — was completed, is a reminder of how many further authorizations were required by Uruguay before construction of the mill itself could begin. The 28 November 2005 approval was limited to clearing the ground of vegetation and did not permit construction (as paragraph 36 of the Judgment makes clear). In my opinion, the steps authorized by Uruguay were too limited in scope to amount to a breach of Article 9 or to demonstrate that Uruguay was not negotiating in good faith.

19. In the case of the Orion (Botnia) mill, the picture is more complicated. I agree with paragraphs 138 to 141 of the Judgment that the agreement between Argentina and Uruguay to establish the High-Level Technical Group, known as the GTAN, was an agreement to create a mechanism to enable the negotiations required by Article 12 of the Statute to take place. It follows that the subsequent exchanges within the GTAN constituted the third stage of the procedure outlined in paragraph 4 above. I also agree that by establishing this mechanism Argentina neither consented to the construction of the mill nor waived its other procedural rights under the Statute. However, I do not agree that the steps which Uruguay took regarding the Orion (Botnia) mill during the period of negotiations in GTAN amounted to a violation of Article 9 or the duty to negotiate in good faith under Article 12 of the Statute.

20. The initial environmental authorization for the mill, granted on 14 February 2005, was not an authorization to construct and pre-dated the establishment of the GTAN. Since Argentina was well aware of this authorization when it agreed to the establishment of the GTAN, it evidently did not consider that the granting of the authorization precluded meaningful negotiation. Similarly, the environmental management plan approval, given on 12 April 2005, was for preliminary work only and again predated the agreement to establish the GTAN negotiating mechanism.

21. There followed two more significant steps. On 5 July 2005 Uruguay gave authorization for the construction of a port adjacent to the proposed site of the mill. This step occurred after the establishment of the GTAN but before the first of the twelve meetings held as part of the GTAN process took place on 3 August 2005. This action on Uruguay's part scarcely provided an auspicious start to the GTAN meetings but it was the mill, not the port, which was the subject of controversy and I do not think this step constituted a violation of Article 9 or of the duty to negotiate in good faith. More important was the approval, on 22 August 2005, of the construction of a chimney and concrete foundations for the mill. This measure permitted Botnia to take an important step towards the construction of the mill but it still fell far short of authorization to carry out the works as a whole. Even after everything approved by this measure was complete, most of the work of construction remained and several more authorizations still had to be obtained. Nor did the actions approved on 22 August 2005 themselves create a risk of damage to the aquatic environment.

22. Uruguay's approval for the construction of the mill itself, given on 18 January 2006, is of an entirely different character and would be capable of violating Article 9 and the duty to negotiate in good faith had it occurred while the 180-day period for negotiations had not yet expired. In fact, it did not do so. It is true that, as Argentina has argued, the first GTAN meeting occurred only on 3 August 2005, so that, if the 180-day period prescribed by Article 12 of the Statute started to run only on that date, it would have ended on 30 January 2006 (the day on which the final GTAN meeting was held). However, the GTAN process was actually established by the two Foreign Ministries on 31 May 2005 (following an agreement in principle between the two Presidents on 3 May 2005). The press release issued by the foreign ministries on 31 May 2005 recording their agreement expressly stated that the GTAN was to produce its report within 180 days (the period stipulated in Article 12 of the Statute), which strongly suggests that the 180-day period was to run from the date of the agreement, not the (then unknown) date of the first GTAN meeting. If the 180-day period is measured from the date of the establishment of GTAN, then it had already come to an end before the authorization to construct the mill was given. Moreover, even if that interpretation is incorrect, on 14 December 2005 the Foreign Ministry of Argentina handed a Diplomatic Note to the Ambassador of Uruguay in which it stated that the negotiations having failed to produce an agreement, a dispute existed between the two States, thus paving the way for the process in Article 60 of the Statute (i.e., reference to the Court). In the light of this communication, it is clear that Argentina regarded the negotiations as having reached an impasse. Uruguay's authorization of construction on 18 January 2006 cannot, therefore, be seen as undermining a negotiating process which its negotiating partner had already declared to have been unsuccessful.

23. In these circumstances, I cannot agree with the Court's conclusion (at paragraph 149 of the Judgment) that "by authorizing the construction of the mills and the port terminal at Fray Bentos before the expiration of the period of negotiation, Uruguay failed to comply with the obligation to negotiate laid down by Article 12 of the Statute".

B. Evidential issues

24. I agree with the Court's finding that the evidence before it does not establish that Uruguay has violated the substantive provisions of the Statute. I also agree with the Court's reasoning regarding the burden of proof. The nature of the case and of the obligations under the Statute does not alter the fundamental principle that, in proceedings before the Court, the burden of proving any given fact rests on the party asserting that fact. I am also in full agreement with the Court's analysis of the evidence before it and the way in which it went about the assessment of that evidence. On that last matter, I share the views expressed by Judge Keith in his separate opinion. I want only to add two brief comments regarding evidential issues.

1. Standard of proof

25. First, while I agree with what the Court has said about the burden of proof, I think it is also important to have regard to the standard of proof, i.e., what a party must do in order to discharge the burden of proof when that burden rests upon it. International courts and tribunals have avoided the distinction between criminal and civil standards of proof familiar to common law (which requires proof beyond reasonable doubt in criminal cases and proof only on a balance of probabilities in civil cases). The Court has, however, indicated in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, pp. 129-130, paras. 208-210) that charges of conduct as grave as genocide require "proof at a high level of certainty appropriate to the seriousness of the allegation" (para. 210). It is implicit in that statement that a lower standard of proof is acceptable in the case of other, less grave, allegations.

26. The present case seems to me to fall squarely within the category of cases which calls for a lower standard of proof. While allegations that a State has violated environmental obligations under a treaty concerning a shared watercourse are undoubtedly serious, they are not of the same character as the allegations in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case. Moreover, the nature of environmental disputes is such that the application of the higher standard of proof would have the effect of making it all but impossible for a State to discharge the burden of proof. Accordingly, I believe that Argentina was required to establish the facts which it asserted only on the balance of probabilities (sometimes described as the balance of the evidence). I agree, however, that it has not done so.

2. The distinction between Experts, Witnesses and Counsel

27. Secondly, I wish to record my strong agreement with the Court's remarks, at paragraph 167 of the Judgment, regarding the practice of having persons who provide evidence before the Court (based, in this case, upon their research, observations and scientific expertise) address the Court as counsel. The distinction between the evidence of a witness or expert and the advocacy of counsel is fundamental to the proper conduct of litigation before the Court (as it is before other courts and tribunals). A witness or expert owes a duty to the Court which is reflected in the declaration required by Article 64 of the Rules of Court. The duties of someone appearing as counsel are quite different. Moreover, a person who testifies, whether as an expert, a witness or in both capacities, can be questioned by the other party and by the Court. For a person who is going to speak of facts within his own knowledge or to offer his expert opinion on scientific data to address the Court as counsel is to circumvent these provisions of the Rules and, in the words of the late Sir Arthur Watts, unacceptably to blur the distinction between evidence and advocacy (Arthur Watts, "Enhancing the Effectiveness of Procedures of International Dispute Settlement" in: J. A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Vol. 5, 2001, pp. 29-30). The problem is particularly acute where, as in the present case, some of those who addressed the Court as counsel had been actively and closely involved in the preparation of scientific reports which were part of the evidence before the Court. For those persons to address the Court as counsel, rather than giving evidence as witnesses or experts, was both unhelpful to the Court and unfair to the other Party.

28. In the present case, any unfairness was mitigated by the fact that both Parties engaged in the same practice. The issue of principle, however, remains and I am pleased that the Court has unequivocally indicated that such a practice should not be repeated in future cases.

C. The continuing obligations of the Parties

29. Courts and tribunals are necessarily required to focus for most of the time upon the events of the past. In the present case, the Court has concluded that Uruguay's conduct to date has violated its procedural obligations under the Statute but has not violated its substantive obligations and that the declaration of a procedural breach is the only remedy which it is appropriate for the Court to grant. It should, however, be clearly understood that the Court is not saying that this is the end of the matter. The Statute imposes upon both Parties important obligations of a continuing character (to which the Court has drawn attention in paragraph 266 of the Judgment). Uruguay has a continuing obligation, under Article 41 of the Statute, to prevent pollution in the River Uruguay and thus to maintain a system of monitoring and strict controls in respect of any discharges from the Orion (Botnia) plant. Both Parties have a duty to co-operate, within the framework of CARU, and CARU itself has an important role to play both in setting standards and in monitoring. The Statute which the Parties agreed in 1975 was a remarkably forward-looking instrument. In several respects it was ahead of its time and is a tribute to the determination of the two States to protect an aquatic environment of great importance to them both. As the Court has remarked, in paragraph 281 of the Judgment, until the present case the machinery created by the Statute had worked well without any need to refer matters to the Court. The Parties have a duty to co-operate to ensure that that machinery continues to work well in the future.

(Signed) Christopher GREENWOOD.


Separate opinion of Judge ad hoc Torres Bernárdez


Dissenting opinion of Judge ad hoc Vinuesa

1. Although I agree with the first paragraph of the dispositive concerning Uruguay's breaches of procedural obligations under the 1975 Statute, I do not share the views of the majority concerning: (1) the relationship between procedural obligations and substantial obligations; (2) the non-existence of a "no construction obligation" once the parties to the 1975 Statute failed to reach an agreement under Article 12; and (3) and the reasoning behind the conclusion that satisfaction is a proper means of reparation. For the reasons stated below (see paras. 40 to 99), I fully disagree with the second paragraph of the dispositive.

A. Issues related to procedural obligations I. The relationship between procedural obligations and substantive obligations

2. I disagree with the majority in assuming that the dispute concerning substantive obligations is temporally restricted as to only refer to "whether Uruguay has complied with its substantive obligations under the 1975 Statute since the commissioning of the Orion (Botnia) mill in November 2007" (Judgment, paragraph 46). Substantive obligations under the Statute could have been, and in fact were, breached by Uruguay before the commissioning of the Orion (Botnia) mill.

3. The authorization of the location of the ENCE and Orion (Botnia) mills in a sensitive, vulnerable and environmentally dynamic site is a breach of the substantive obligations prescribed by the Statute. This violation, committed before the commissioning of the Orion (Botnia) mill, breached Uruguay's substantive obligations independently of Uruguay's procedural obligation breaches.

4. I also disagree with the majority's finding that "the procedural obligations are distinct from substantive obligations laid down in the 1975 Statute . . ." (ibid., paragraph 271). Instead, I strongly support the idea that the procedural obligations are directly interrelated with the substantive obligations. The Statute does not distinguish between different legal effects for each category of obligations. Moreover, the object and purpose of the 1975 Statute concerns the utilization of "the joint machinery necessary for the optimum and rational utilization of the River Uruguay" (Art. 1). The raison d'être of the Statute is to achieve the optimum and rational utilization of the river through the implementation of procedural obligations as established in Articles 1, 7 to 12, and 27. The Statute's irrefutable purpose is to prevent unilateral actions in the determination of the uses of a shared natural resource "which are liable to affect navigation, the régime of the river or the quality of its waters" (Art. 7). Additionally, Article 27 provides that:

"The right of each Party to use the waters of the river, within its jurisdiction, for domestic, sanitary, industrial and agricultural purposes shall be exercised without prejudice to the application of the procedure laid down in articles 7 to 12 when the use is liable to affect the régime of the river or the quality of its waters."

The Court states that it has:

"already dealt with the obligations arising from Articles 7 to 12 of the 1975 Statute which have to be observed, according to Article 27, by any Party wishing to exercise its right to use the waters of the river for any of the purposes mentioned therein insofar as such use may be liable to affect the régime of the river or the quality of its waters" (Judgment, paragraph 177).

5. The Court is therefore assuming that the breach of Articles 7 to 12 inexorably implies the breach of Article 27. The Court is also of the opinion that:

"Article 27 embodies this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development" (Judgment, paragraph 177);

which shows that the Court recognizes that by breaching Articles 7 to 12 the balance required by Article 27 has also been breached.

The Court finds that the:

"overall procedure laid down in Articles 7 to 12, which is structured in such a way that the parties, in association with CARU [the Administrative Commission of the River Uruguay], are able, at the end of the process, to fulfil their obligation to prevent any significant transboundary harm which might be caused by potentially harmful activities planned by either one of them" (ibid., paragraph 139).

6. As a consequence of the above, Uruguay has violated not only Articles 7 to 12, as the Court has asserted, but also Article 27 which is substantive in nature. Furthermore, the non-observance by Uruguay of the object and purpose of the Statute itself constitutes a grave substantive breach of the Statute.

II. The "no construction obligationn" during the processes leading to the settlement of the dispute

7. The Court deals with the question of Uruguay's obligations following the end of the negotiation period (Judgment, paragraphs 151 to 158) concluding:
"that Uruguay did not bear any 'no construction obligation' after the negotiation period provided for in Article 12 expired . . . Consequently the wrongful conduct of Uruguay . . . could not extend beyond that period." (Ibid., paragraph 157.)

I categorically disagree with this finding.

8. It is true that the "no construction obligation" that Uruguay was supposed to respect between the end of the negotiation period and the delivery of the final judgment of the Court is not expressly laid down by the 1975 Statute, a point stated by the Court (ibid., paragraph 154). On the contrary, it is wrong to assume, as the Court does, that the above obligation cannot be derived from the Statute's provisions.

9. The Statute only allows parties to carry out or authorize the planned work if the notified party raises no objections or does not respond within the period established in Article 8. Article 9 provides that "If the notified Party raises no objections or does not respond within the period established in article 8, the other Party may carry out or authorize the work planned." The right to carry on or authorize the planned works could also result from the Parties' agreement at the conclusion of the negotiation period designed under Chapter II of the 1975 Statute.

10. The Court's assertion that "Article 9 only provides for such an obligation during the performance of the procedure laid down in Articles 7 to 12 of the Statute" (ibid., paragraph 154) is misleading and without legal foundation. Additionally, as I discuss below, the Statute itself links the negotiation and judicial settlement processes, thereby naturally extending the no construction obligation until the end of the proceedings before the Court.

11. In my view, Article 9 is complemented by Article 12 in order to assure that, if no agreement is reached by the parties during negotiations, the procedure indicated in Chapter XV shall be followed. The parties have already assumed the obligation to settle the dispute through the procedures described in Chapter II, Articles 7 to 12. It follows that the parties should perform their treaty obligations in good faith and that they must abstain from embarking on the planned works — the very object of the dispute — until the Court makes its final decision. As a result, the no construction obligation, once triggered, extends until the resolution of the dispute.

12. This interpretation is borne out by the clear language of the Statute. Article 12 states that "Should the Parties fail to reach agreement within 180 days following the notification referred to in article 11, the procedure indicated in chapter XV shall be followed." Article 60 provides that "Any dispute concerning the interpretation or application of the Treaty and the Statute which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice." When paired with Article 60, it is clear that Article 12 overrules the permissive language of Article 60. Even in the authentic Spanish text, where Article 12 provides that: "Si las Partes no llegaren a un acuerdo . . . se observarâ el procedimiento indicado en el Capitulo XV", it is clear that the procedure indicated in Chapter XV requires recourse to the International Court of Justice. A logical reading of the Statute would also exclude recourse through Article 12 to the additional part of Article 60, which refers to the conciliation procedure of Chapter XIV and is not implicated here.

13. The simple textual interpretation of Article 12 through its context and through the principle of good faith indicates that Article 12 is mandatory for the parties. It obliges both parties to follow the procedure indicated in Chapter XV. Article 12 therefore represents a "compromissory arrangement" to settle any dispute stemming from the parties' failure to reach an agreement on planned works through submission of the dispute to the Court.

14. Following general customary international law as codified by Article 31 of the Vienna Convention of the Law of Treaties of 1969, it is my view that the Court's interpretation of Article 12 does not comport with the clear and precise meaning of the text and its context, as is required by customary international law and this Court's jurisprudence. (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 174, para. 94; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8; South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 336; Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J., Series B, No. 11, p. 39; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, pp. 69-70, para. 48 and see dissenting opinion of Judge Weeramantry, pp. 135-137; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, pp. 582-583, paras. 373-374; see also Commentary (Treaties), Yearbook of the International Law Commission, 1966, Vol. II, p. 220, para. 9.)

The Court's interpretation also contradicts the very object and purpose of the 1975 Statute which is "to establish the joint machinery necessary for the optimum and rational utilization of the River Uruguay" (Art. 1), which again contradicts settled rules of treaty interpretation based on the agreement's object and purpose (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), pp. 812-814, paras. 23, 28;

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 136-137, paras. 272-273; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 652, para. 51; Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment, I.C.J. Reports 1952, p. 196; Asylum (Colombia/Peru), Judgment, I.C.J. Reports 1950, p. 282; Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, pp. 50-51, paras. 26-28; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 26, para. 52; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 48, para. 85). Such interpretation deprives Article 12 of its effet utile, vitiating the Statute's text and again violating established rules of treaty interpretation (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 25-26, paras. 51-52; Lighthouses case between France and Greece, Judgment, 1934, P.C.I.J., Series A/B, No. 62, p. 27; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 35, para. 66; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 22, para. 52).

15. In my view, the Court fails to recognize: first, that when negotiations came to an end, the "disputed activities" — mentioned at paragraph 143 of the Judgment — continued to be unsettled; and second, that recourse to the International Court of Justice as expressed in Article 12 was an essential step contained within the procedure considered necessary by the Parties to ensure the Statute's object and purpose: the optimum and rational utilization of the river. The Court also fails to acknowledge that through Article 12 the Parties have assumed an explicit obligation, if no agreement is reached, to follow the procedure indicated in Chapter XV. The reading of this provision by the Court deprives Article 12 and Chapter XV of their substance and enforces an illogical reading of the mandates of Article 12 and Chapter XV.

16. The obligation to negotiate — which was accompanied by the no construction obligation in this case — is just one of the methods for the peaceful settlement of disputes. The 1975 Statute, as a lex specialis, provides that if the parties fail to reach an agreement, they must submit to litigation before the Court. In that sense, the obligation to negotiate is linked to the obligation to refer the dispute to the International Court of Justice to form a non-severable course of action. Both treaty obligations must be performed in good faith, as is required by international law. The Court has already recognized that:

"the mechanism for co-operation between States is governed by the principle of good faith. Indeed, according to customary international law, as reflected in Article 26 of the 1969 Vienna Convention of the Law of Treaties, '[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith'. That applies to all obligations established by a treaty, including procedural obligations which are essential to co-operation between States." (Judgment, paragraph 145.)

17. Taking that into account, the Court recognizes that:

"as long as the procedural mechanism for co-operation between the parties to prevent significant damage to one of them is taking its course, the State initiating the planned activity is obliged not to authorize such work and, a fortiori, not to carry it out" (ibid., paragraph 144).

Then the Court concludes in paragraph 147 that Article 12 is within the joint mechanism provided by the Statute; based on this finding, the Court then concludes that "[c]onsequently, Uruguay disregarded the whole of the co-operation mechanism provided for in Articles 7 to 12 of the 1975 Statute" (Judgment, paragraph 149). It is my view that the Court could not ignore that the Parties must perform their obligations under Article 12 in good faith, and that the no construction obligation that was in force during the negotiations should have continued until the Court's judgment. This conclusion comports with the proper interpretation of these provisions; unfortunately, the Court's conclusions do not.

18. The Court holds that "One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith" (ibid., paragraph 145) and that "Trust and confidence are inherent in international co-operation", drawing on the Court's decision in the Nuclear Tests (Australia v. France) case (Judgment, I.C.J. Reports 1974, p. 268, para. 46). I cannot agree with the Court's finding that a party's obligation to stay construction on the planned works ends before a final settlement of the dispute is reached by the Court under Chapter XV (Judgment, paragraphs 154 and 157). Even more, there is a bizarre juxtaposition of the Court's conclusion that "Uruguay failed to comply with the obligation to negotiate laid down in Article 12 of the Statute" (ibid., paragraph 149) with the Court's decision that the no construction obligation in this case ended along with the negotiations. This confusing conclusion shows that the Court ignores that Article 12 — in addition to mandating negotiations — also mandates recourse to the procedure of Chapter XV of the Statute once negotiations come to an end.

19. The majority also fails to explain why the obligation to settle the dispute through recourse to the International Court of Justice, as seen in Articles 12 and 60, puts an end to the "no construction obligation". In my own view, under Article 12, the obligation to negotiate — when exhausted — is replaced by the obligation to settle the dispute at the International Court of Justice. As a result, the no construction obligation extends until the dispute is settled by the Court.

20. This is supported in part by the Judgment, which finds that during negotiations the parties are bound by the no construction obligation as a consequence of their obligation to negotiate in good faith (ibid., paragraph 145). However, the majority fails to explain how the direct effect of the lack of good faith in negotiations by Uruguay — as was the case here — results in a right to resume construction of the planned works as the case awaits a final decision by the International Court of Justice. This reading is contrary to the text of Article 12, it has no support within its context and it is opposed to the object and purpose of the 1975 Statute as expressed in Article 1. As a result, the Court seems to reward parties who negotiate in bad faith by allowing them to continue construction of the works even if they have not fulfilled their procedural obligations in good faith.

21. As a consequence of the above reasoning, I completely disagree with the Court's finding that:

"Article 12 does not impose an obligation on the parties to submit a matter to the Court, but gives them the possibility of doing so, following the end of the negotiation period. Consequently, Article 12 can do nothing to alter the rights and obligations of the party concerned as long as the Court has not ruled finally on them. The Court considers that those rights include that of implementing the project, on the sole responsibility of that party, since the period for negotiation has expired." (Judgment, paragraph 155.)

22. The Court also contradicts itself when it concludes that:

"while the 1975 Statute gives it jurisdiction to settle any dispute concerning its interpretation or application, it does not however confer on it the role of deciding in the last resort whether or not to authorize the planned activities. Consequently, the State initiating the plan may, at the end of the negotiation period, proceed with the construction at its own risk." (Judgment, paragraph 154.)

23. Any failure of the parties to agree at the end of the Chapter II procedures constitutes a dispute concerning the interpretation and application of the Statute. The Court cannot ignore its responsibility to resolve the dispute arising out of the parties' disagreement on the sole basis that the Statute does not confer the power to authorize or forbid the planned activities because that is simply not correct.

24. As a result, the Court must exercise its jurisdiction to settle the dispute arising out of the Chapter II procedures, even if in doing so it will also judge the viability of the planned works. That is so, in particular, taking into account that the Court attributes to itself the role of being "the ultimate guarantor of [the parties'] compliance with the 1975 Statute" when deciding on the merits of the dispute (ibid., paragraph 156).

25. Even were it accepted, again for the sake of argument, that "the State initiating the plan may, at the end of the negotiation period, proceed with construction at its own risk" (ibid., paragraph 154), it does not follow that either State may commission works which prematurely begin using the protected shared resource before the dispute is settled. In other words, even if sovereign rights would allow a riparian State to construct in its own territory at its own risk, this sovereign right must not be extended to allow the unilateral use or disposition of a shared natural resource until the final resolution of the dispute.

26. It is noteworthy that the Court in its Order on Provisional Measures of 13 July 2006 stated 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" (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 78). This Order, while it did not forbid continued construction of the mill, could not and did not give a green light to Uruguay to commission the mill which would allow the mill to use the shared resource of the river.

27. In fact, the Court, after emphasizing that:

"the present case highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development . . . in particular [it is] 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" (ibid., para. 80), then proceeded to state that:

"the Parties are required to fulfil their obligations under international law; . . . 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 . . . the Court further encourages both Parties to refrain from any actions which might render more difficult the resolution of the present dispute" (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 134, para. 82).

28. The commissioning of the plant without CARU's authorization, without consultation of Argentina, without regard for Uruguay's international environmental obligations and without any attention to the exacerbation of the dispute indicates a flouting of the Court's direct request. The Court fails to hold Uruguay accountable for these actions.

29. This interpretation of Article 12 will validate an "in limbo" situation, allowing each of the Parties to unilaterally exploit a shared natural resource as if it were its own exclusive resource while a dispute over this utilization is pending before the International Court of Justice.

III. Satisfaction as the proper means of reparation of Uruguay's repeated breaches of the 1975 Statute

30. The Court acknowledges that Argentina requested the Court "to adjudge and declare that Uruguay must 'provide adequate guarantees that it will refrain in future from preventing the 1975 Statute from being applied'" (Judgment, paragraph 277).

31. Although I disagree with the Court's assessment that there are no "special circumstances in the present case requiring the ordering of a measure [requiring non-repetition] such as that sought by Argentina" (ibid., paragraph 278), I arrive at the Court's overall conclusion concerning reparation through different reasoning.

32. On the issue of special circumstances, the Court fails to consider that Uruguay's conduct — in preventing the Statute's joint machinery from functioning — amounts to a substantive violation of the 1975 Statute, as embodied in the object and purpose of the Statute as set out in Article 1. This violation of Article 1, as well as Articles 7 to 12 and 27, may not in principle be remedied just through the mere recognition of such a violation. Assuming, for the sake of argument, that the violation of substantive obligations as described above remains inchoate during the construction process, including the site selection process, it still means that after the construction of the mill it is still violative of the Statute for a riparian State to use the river waters as its own.

33. It is critical to take into account many facts in order to determine whether the Court should find that special circumstances exist. First, different proposals to establish new mills in the area are constantly under consideration by Uruguay. Second, Uruguay's violations of procedural obligations were the direct consequence of its own will to avoid compliance with the 1975 Statute. Third, Uruguay lacked good faith in the negotiations. Fourth, there was public recognition by Uruguayan authorities of its lack of interest in complying with the Statute's procedural obligations.

In particular as to the fourth point, the former Minister of Foreign Affairs of Uruguay, when addressing the Senate in November 2003 expressed:

"Le fait de reconnaître à la Commission une compétence spécifique dans cette étape de la procédure, reviendrait à reconnaître la présomption de l'application des articles 7 et 8. La présomption est que cette réalisation portera atteinte ou pourra porter atteinte — je crois que l'expression de la réglementation est: il y aura un risque certain — à la qualité et a [sic] la navigabilité des eaux. Étant donné que ces deux éléments font défaut il est naturel que le Gouvernement de l'Uruguay ne soit pas en situation d'avoir à placer cette question sous l'orbite de la Commission. Il s'agirait d'une renonciation à des compétences que le Gouvernement de la République n'entend pas effectuer; il n'y a rien de plus simple." (Procès verbal, intervention du Ministre des Affaires Étrangères, M. Didier Opperti, au Sénat uruguayen, (novembre 2003))
From the above facts there is only one conclusion: that Uruguay's actions may not be disregarded, as the Court does here. Instead, these actions represent the special circumstances that justify the imposition of an obligation of non-repetition in order to ensure that Uruguay will not take steps to wilfully obstruct the application of the 1975 Statute in the future.

34. The Court in paragraph 278 recognizes that it has observed:

"[w]hile the Court may order, as it has done in the past, a State responsible for internationally wrongful conduct to provide the injured State with assurances and guarantees of non-repetition, it will only do so if the circumstances so warrant, which it is for the Court to assess.
As a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed (see Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 63; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 63; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para 101). There is thus no reason, except in special circumstances . . . to order [the provision of assurances and guarantees of non-repetition]." (Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) 3 Judgment of 13 July 2009, paragraph 150.)

35. While the Court quotes from its own precedents, as it does here, it avoids taking into consideration as a special circumstance the fact, recognized by the Court, that Uruguay has breached its procedural obligations, in respect to the ENCE project and in respect to the Orion (Botnia) mill and its adjacent port (see Judgment, paragraphs 105 to 122). The Court has the evidence before it that there was already a repetition by Uruguay of procedural breaches of identical obligations under the 1975 Statute. Furthermore, the Court has already concluded that Uruguay has breached its obligations to negotiate in good faith (see ibid., paragraph 149). In spite of that factual evidence, the Court considers that Uruguay's good faith in future applications of the 1975 Statute "must be presumed". I am at odds with such reasoning.

36. The evidence on the record and the findings of the Court concerning procedural violations confirm that special circumstances are present in the present case so as to justify the express imposition in the dispositive of an obligation of non-repetition upon Uruguay, particularly given the bad faith conduct of Uruguay in the past.

37. Despite this belief, it is my understanding that the obligation of non-repetition exists, in the present case, in the Court's finding:

"that both Parties have the obligation to enable CARU, as the joint machinery created by the 1975 Statute, to exercise on a continuous basis the powers conferred on it by the 1975 Statute, including its function of monitoring the quality of the waters of the river and of assessing the impact of the operation of the Orion (Botnia) mill on the aquatic environment. Uruguay, for its part, has the obligation to continue monitoring the operation of the plant in accordance with Article 41 of the Statute and to ensure compliance by Botnia with Uruguayan domestic regulations as well as the standards set by CARU. The Parties have a legal obligation under the 1975 Statute to continue their co-operation through CARU and to enable it to devise the necessary means to promote the equitable utilization of the river, while protecting its environment." (Judgment, paragraph 266.)

38. As the Court has found that Uruguay alone breached its procedural obligations under the 1975 Statute, it is incumbent upon Uruguay to conform its conduct in order to duly comply with its treaty obligations and the Court's recognition of the role of CARU as noted above.

39. In my opinion, the imposition of such obligations of conduct, in the light of the general rule that a State whose acts or conduct have been declared wrongful by the Court will not repeat the acts or conducts in the future — assuming the State's good faith in following the Court's decision — makes a declaration of the obligation of non-repetition by the Court redundant.

B. Substantive obligations under the 1975 Statute

40. Whereas in the context of procedural violations, the Court has before it firm evidence on which to base its conclusions — namely, the 1975 Statute and a record of the steps taken by the Parties — the same evidential certainty does not exist in the context of Uruguay's alleged substantive violations, thereby severely hampering the Court's ability to make appropriate determinations of fact and law based on sound scientific findings.

I. Determination of the burden of proof

41. The Judgment notes that Argentina has itself generated much factual information and it adds that materials produced by Uruguay have been available at various stages of the proceedings or have been available in the public domain (Judgment, paragraph 226). The Court thus finds that Argentina has not been placed at a disadvantage in terms of the production of evidence relating to the discharges of effluent from the mill. However, such a finding is contradicted by the fact that Argentina was only able to collect scientific data from the Argentine side of the River Uruguay, because it was prevented from collecting samples on the Uruguayan side of the river, particularly where discharges from the Orion (Botnia) mill occur. Argentina was also banned from collecting samples from the mill itself. In addition, no evidence was collected in common through CARU. Therefore Argentina was not in a position to obtain evidence at the source itself. This critical fact should have been acknowledged in the Judgment.

42. In terms of the burden of proof, I agree with the finding of the Court that:

"in accordance with the well-established principle of onus probandi incumbit actori, it is the duty of the party which asserts certain facts to establish the existence of such facts. This principle which has been consistently upheld by the Court . . . applies to the assertions of fact both by the Applicant and the Respondent." (Judgment, paragraph 162.)
I disagree however with the Court's assessment that: "that there is nothing in the 1975 Statute itself to indicate that it places the burden of proof equally on both Parties" (Judgment, paragraph 164).

43. First, Article 12 imposes upon both Parties an obligation to refer their dispute concerning any lack of agreement on the viability of planned works to the International Court of Justice. Second, a finding by the Court that Uruguay has breached its procedural obligations under the Statute necessarily implies that Uruguay has not complied with its obligations to produce all relevant evidence to CARU and to Argentina so as to allow for an assessment as to whether or not the planned works are "liable to affect navigation, the régime of the river or the quality of its waters" (Art. 7). In my view, a direct consequence of Uruguay's procedural breaches is that Uruguay should have provided the missing evidence to the Court.

44. I agree that any breach of Chapter II obligations does not necessarily justify a reversal of the burden of proof, but such a finding does reaffirm the basic principle stated by the Court in paragraph 162 with reference to the onus probandi of both the Applicant and the Respondent. It follows from the Court's finding that, "while a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute" (Judgment, paragraph 164), in interpreting and applying Article 12 an "equal onus to prove under the 1975 Statute" should be binding upon both Parties. In my view there is a clear contradiction between this statement and the following assertion by the Court:

"It is of course to be expected that the Applicant should, in the first instance, submit the relevant evidence to substantiate its claims. This does not, however, mean that the Respondent should not co-operate in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it." (Ibid., paragraph 163.)

It is difficult to follow the Court's reasoning when, on the one hand, it states that Uruguay has breached its procedural obligations (among which is the obligation to produce information) and, on the other hand, it merely exhorts Uruguay, as the Respondent, to co-operate. The Court is thus transforming a previous binding obligation to produce evidence into a mere goodwill gesture to co-operate by providing evidence to the Court.

II. The object and purpose of the 1975 Statute and the uses of the waters

45. Article 1 not only informs the interpretation of the substantive obligations, as the Court finds at paragraph 173 of its Judgment, but also lays down specific rights and obligations for the Parties. It is true that optimum and rational utilization is to be achieved through compliance with the obligations prescribed by the 1975 Statute for the protection of the environment and the joint management of the River Uruguay as a shared resource. However, it is also true that optimum and rational utilization creates specific obligations for both riparian States to prevent any use liable to affect navigation, the régime of the river or the quality of the waters. In that context, any planned works and any use of the river must be analysed jointly to evaluate the potential damage to the river as a shared resource and any transboundary damage to the other party, particularly given that the river serves as an important source of water for the local communities and also sustains a thriving tourism industry.

46. In keeping with earlier comments on the relationship between procedural and substantive obligations, under Article 27 of the Statute the "status" of the River Uruguay as a shared natural resource is reflected in the fact that national use of the river for domestic, sanitary, industrial and agricultural purposes is subject to the procedural obligations laid down in Articles 7 to 12, where such utilization is significant enough to affect the régime of the river or the quality of its waters. The right of each State to use the river within its domestic jurisdiction is subject to the strict co-operation mechanism established under the 1975 Statute.

47. I strongly believe that Article 1 should be considered as an umbrella clause establishing joint machinery for the observance of substantial obligations to accomplish the optimum and rational utilization of the river. Meanwhile, the content of Article 27, considered by the Court as "the essence of sustainable development" (Judgment, paragraph 177), constitutes in itself a substantial obligation.

48. To my understanding, the Court, by declaring that Uruguay has breached its procedural obligations under Articles 7 to 12 of the 1975 Statute, has confirmed: (i) the non-observance of the joint machinery prescribed under Article 1 in order to accomplish the optimum and rational utilization of the river; and (ii) the non-observance of Article 27 under which the Parties are obliged to apply "the procedure laid down in Articles 7 to 12 when the use is liable to affect the régime of the river or the quality of its waters".

49. In light of the above, the Court should have declared that Uruguay had breached its substantive obligations under Articles 1 and 27 of the 1975 Statute before proceeding to an evaluation of adequate reparation. I regret that the Court has not done so.

III. The obligation to co-ordinate measures to avoid changes in the ecological balance of the river and areas affected by it (Art. 36)

50. In my view, the Court states incorrectly at paragraph 189 that "Argentina has not convincingly demonstrated that Uruguay has refused to engage in such co-ordination as envisaged by Article 36, in breach of that provision". It is also stated at paragraph 185 that "the purpose of Article 36 . . . is to prevent any transboundary pollution liable to change the ecological balance of the river by co-ordinating, through CARU, the adoption of the necessary measures". According to the Court, those measures were adopted through the promulgation of standards by CARU.

51. But this reading by the Court limits the Statute to CARU standards. However, CARU standards were agreed upon to control and prevent pollution arising from pre-existing uses of the river waters. As a result, the Court's position is at odds with the weight of the evidence. The Court's reading does not allow for pre-emptive regulation of planned future uses. The CARU Digest itself refers to the joint machinery and the necessary intervention of CARU resulting from Articles 7 to 12 for future planned uses of the river waters. It follows that for any planned uses of the river, the co-ordination envisaged in Article 36 should be channelled through CARU according to Articles 7 to 12. Any other interpretation of Article 36 implies that the Parties and CARU would not have the chance to assess the effects of planned uses of the river waters but would simply have to wait until the industrial facility became operational in order to verify at that point whether it polluted the river or not. This is not the object and purpose of the Statute as stated in Article 1.

52. That is why I believe that the object and purpose of the Statute has been violated and this violation has to be sanctioned. Argentina has clearly proven that Uruguay has refused to engage in such co-ordination and thus it is apparent that Uruguay has breached Article 36 of the 1975 Statute.

IV. The obligation to preserve the aquatic environment and prevent its pollution (Art. 41)

(a) Environmental impact assessments

53. My main points of disagreement with the Court's findings on Article 41 are related to issues concerning environmental impact assessments and effluent discharges.

Concerning environmental impact assessments, I do believe that there is sufficient evidence in the record to prove, that Uruguay has breached its obligation to "co-ordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it" (Art. 36). That lack of co-ordination has negatively influenced the performance by Uruguay of its obligations under Article 41 (a) of the Statute to protect and preserve the aquatic environment and, in particular, to prevent its pollution. Consequently, I disagree with the Court's conclusions on Uruguay's compliance with due diligence requirements on environmental impact assessments in relation to: (i) the chosen site for the Orion (Botnia) mill; and (ii) the consultation of the affected populations. I will address both concerns in turn.

(i) The siting of the Orion (Botnia) mill at Fray Bentos

54. In its consideration as to whether Uruguay carried out an appropriate assessment prior to the determination of the final site, the Court should not have satisfied itself with a mere mention in the Final Cumulative Impact Study (hereinafter "CIS") of the International Finance Corporation (hereinafter the "IFC") that Botnia evaluated in 2004 four locations before choosing Fray Bentos. The CIS dates from September 2006, which is more than a year and a half after the authorization in February 2005 for the construction of the Orion (Botnia) mill and came after Argentina's complaints about the lack of alternative site assessment and after proceedings had been instituted before the Court. Secondly, the CIS reference to Botnia's evaluation is a one page referral containing a listing of the four sites and a minimum of substance about the reasons why the alternative sites were discarded.

55. According to the CIS, "logistics" played a key role in the decisions of both Botnia and ENCE not to proceed with any of the alternative sites, even though it was also claimed that "environmental and structural aspects were also important". No information, however, is given as to what those environmental aspects were, neither is there evidence — nor, for that matter, is it claimed — that environmental impact assessments were conducted in relation to those alternative sites.

56. Particularly striking are the reasons provided by Botnia for its decision to discard the other three locations: for La Paloma, it was because of its vicinity to important tourist areas; for Nueva Palmira, it was because of the presence of culturally important sites (Desembarco de los 33 Orientales) and the proximity of "high end" residential areas; and for Paso de los Toros, it was because of the limited amount of water available. The other reasons listed are purely of an economic nature related to costs and the availability of fresh water. The "comparative table" found in pages 2.10 and 2.11 of the CIS shows no information as to why Fray Bentos was the safest choice to build the mill from an environment point of view, other than the claim that the nearer the plant from the eucalyptus plantations the less the ecological harm.

57. The assumption made in the Judgment that, "in accordance with Articles 36 and 56 of the 1975 Statute, CARU must have taken into account the receiving capacity and sensitivity of the waters of the river" (Judgment, paragraph 214) does not nullify the obligation to assess the sensitivity and vulnerability of a pre-determined site with reference to a specific planned use and its particular impact on that site. This is in accordance with a strict observance of Article 27, Articles 7 to 12 and Article 1 of the Statute and with the Digest's referral to Articles 7 to 12 for future planned uses. In that context, the general assumption made in the Judgment cannot overrule the provisions of the Statute, nor can it be relied upon to justify non-compliance with obligations derived from the mandatory implementation of Chapter II of the Statute. Moreover, the Court admits that the CARU standards were not exhaustive (Judgment, paragraph 202).

58. Because of Uruguay's procedural violations, both CARU and Argentina were deprived of the possibility to evaluate whether the planned activity was liable to affect the quality of the waters in that particular site of the River Uruguay. If procedural obligations had not been violated by Uruguay, CARU and Argentina would have had the chance to adequately take into consideration the geomorphological and hydrological characteristics of the river at the site and the capacity — more precisely the incapacity — of its waters to disperse and dilute different types of discharges from the projected works. Any inadequacy of the site itself, particularly with respect to certain areas of the river such as Fray Bentos, could have been detected if the obligations under Chapter II had been duly complied with.

(ii) Consultation of the affected populations

59. The Court recognizes that "[t]he Parties disagree on the extent to which the populations likely to be affected by the construction of the Orion (Botnia) mill, particularly on the Argentine side of the river, were consulted in the course of the environmental impact assessment" (Judgment, paragraph 215). The Parties' disagreement concerns the results of the consultation of the affected populations, the extent to which concerns raised were taken into consideration and whether the consultation was meaningful. The Court further recognizes that both Parties agreed on such consultation, although the Court is of the view that "no legal obligation to consult the affected populations arises for the Parties from the instruments invoked by Argentina" (ibid., paragraph 216).

60. The Court omits to refer to the unilateral obligation assumed by Uruguay to comply with established European standards requiring public consultation of local populations liable to be affected by transboundary projects in such a way as to guarantee their effective participation at an early stage (IPPC Directive, 1996).

61. The finding of the Court that the obligation to consult the affected populations does not arise from the instruments invoked by Argentina does not detract from the fact that both Parties were in agreement that consultation of the affected populations should form part of the environmental impact assessment.

62. The Court notes that both before and after the granting of the initial environmental authorization, Uruguay undertook activities aimed at consulting the affected populations (Judgment, paragraph 217) and that between June and November 2005 further consultations were conducted by the Consensus Building Institute, a non-governmental organization contracted by the IFC (ibid., paragraph 218). The Court also notes that "[i]n December 2005, the draft CIS and the report prepared by the Consensus Building Institute were released, and the IFC opened a period of consultation to receive additional feedback from stakeholders in Argentina and Uruguay" (ibid.). In light of the above, the Court finds, at paragraph 219, "that consultation by Uruguay of the affected populations did indeed take place". I disagree with this conclusion.

63. The Court does not answer the issues raised by the Parties. It does not make any pronouncements on the question of whether or not the concerns of the Argentine population were taken into account or if consultations were meaningful or not.

64. The consultation referred to by the Court at paragraph 217 of its Judgment was characterized by the Ombudsperson of the IFC as irrelevant and meaningless. The IFC ombudsperson presented her preliminary report entitled: "Complaint regarding IFC's proposed investment in Celulosas de M'Bopicuâ and Orion Projects" in which it is stated that the construction of the cellulose plants was presented as a fait accompli to those who had supposedly been consulted.

65. In my view, all of the consultations mentioned by the Court at paragraph 218 of its Judgment took place after environmental authorizations had been granted, and therefore all are meaningless. This is supported by the Court's acknowledgement that "both Parties agree that consultation of the affected populations should form part of an environmental impact assessment" (Judgment, paragraph 215). This requires that the consultation must have taken place before the environmental impact assessment was issued. Thus, to my understanding, Uruguay has not complied with its due diligence obligation to consult the affected populations prior to the issue of the authorization to build the Orion (Botnia) mill.

66. The permanent protest of the population of Gualeguaychu is additional evidence of the non-fulfilment by Uruguay of its obligation to engage in a reasonable and meaningful consultation of the affected population on the Argentine side of the river.

(b) Effluent discharges and the Court's role in evaluating scientific data that proves violations of substantive obligations

67. With regard to discharges of effluents from the Orion (Botnia) mill, I disagree with the Court's conclusions which are based on an inadequate evaluation of data. It is also a matter of deep regret to me that the Court did not address the future cumulative effects of actual pollution generated by the Orion (Botnia) mill in order to assess future harmful effects during the 40-year lifespan of the plant.

68. I was particularly troubled by Uruguay's inability to collect and produce reliable data. Most of the data that Uruguay submitted in its pleadings was provided by Botnia to Uruguay's National Directorate for the Environment (DINAMA) which passed it on to the Court. My main concern is that the Court attempts to draw solid and justified conclusions on the law — particularly in assessing Uruguay's substantive violations — without the weight of incontrovertible scientific evidence to bolster its conclusions. I believe that a judgment based on disputed data as well as on conclusions which have been reached without any independent scientific evaluation will not be able to withstand scrutiny, and in particular will not provide a solution that takes due account of the realities of the situation on the river.

69. Specific examples of facts that the Court dismisses — and which I will address in further detail below — include: discrepancies in the Adsorbable Organic Halogens (AOX) data collected by the two Parties, including extremely high measurements that were summarily discarded by DINAMA; an unexplained increase in bacteria associated with the pulping process after the commissioning of the Orion (Botnia) mill; discrepancies between data collected on phosphorus in the water; the February 2009 record of an algal bloom of an exceptionally high magnitude, intensity and toxicity, an event which occurred only after the commissioning of the plant; the threefold rise in levels of phenolic substances after the commissioning of the plant in violation of CARU standards for water quality for the river; the baffling existence of nonlyphenols in the water combined with the expert opinion presented by Argentina, according to which Botnia's assurances of the non-use of nonlyphenols at the mill was deeply flawed and inconsistent with the reality of pulp mill operations; the troubling existence of dioxins and furans in the air and aquatic environment. With respect to all of these polluting elements in the water, the Court considers that there is incomplete or disputed evidence establishing their presence and/or a link between their presence and the Orion (Botnia) mill. Basing its legal analysis on this incomplete evidence renders the Judgment itself incomplete.

70. In various key passages, the Court reaches conclusions on alleged substantial violations while acknowledging the lack of scientific certainty underpinning those findings: "Argentina has not convincingly demonstrated that Uruguay" (Judgment, paragraph 189); "the Court is not in a position to conclude that Uruguay" (ibid., paragraph 228); it has "not been established to the satisfaction of the Court" (ibid., paragraph 250); "there is insufficient evidence" (ibid., paragraph 254); "there is no clear evidence to link" (ibid., paragraph 259); "a clear relationship has not been established" (ibid., paragraph 262); "the record does not show any clear evidence" (ibid., paragraph 264).

71. However, despite the lack of specialized expert knowledge, the Court sets itself the task of choosing what scientific evidence is best, discarding other evidence, and evaluating and weighing raw data and drawing conclusions. In my view, the specific discrepancies and general inconclusiveness of the data itself undermines the legal pronouncements of the Court. My concerns about the Court's reliance on this scientific data encourage my vigorous dissent.

72. In particular, the Court reflects upon the scientific submissions by the Parties in its discussion of the data. However, throughout this overview of the evidence, there is no discussion about the scientific integrity of the scientific methodologies applied. There is also no discussion about the scientific integrity of the results. This silence on the important issue of credibility of the scientific submissions reflects more than just an accidental oversight. Instead, this silence underscores the Court's lack of scientific competence and throws doubt on the Court's ability to determine whether the data is scientifically viable or credible. The Court does not have the proper expertise or knowledge to draw the expert conclusions that it makes, and this Judgment fully reflects that.

73. I will next address what I consider to be the main inconsistencies of the Court's evaluation process by reference to (i) adsorbable organic halogens; (ii) phosphorus; (iii) the algal bloom of February 2009; (iv) phenolic substances; (v) nonylphenols; (vi) dioxins and furans; and (vii) air pollution.

(i) Adsorbable Organic Halogens (AOX)

74. The Court in paragraph 228 notes that the levels of Adsorbable Organic Halogens (AOX) exceeded by more than double the acceptable levels in the river's water. While the Court notes that the initial environmental authorization from almost two years prior to the commissioning of the Orion (Botnia) mill did allow for yearly averaging of this parameter, it does not have the appropriate factual data to draw this conclusion. As the Court says, there is an "absence of convincing evidence" (Judgment, paragraph 228) proving that this is an isolated episode rather than an enduring problem. However, the Court does not then point to evidence that the yearly parameters themselves were met, nor does it suggest that convincing evidence has been provided to show that this result was just an errant data value. Instead, the Court ignores the potential danger that could stem from prolonged discharge of this persistent organic pollutant, and draws a conclusion that this data value is inconsequential.

(ii) Phosphorus

75. The Court turns to phosphorus in paragraph 240. The Court notes that DINAMA stated clearly that the "effluent in the plant will emit [amounts of nitrogen and phosphorus] that are the approximate equivalent of the emission of the untreated sewage of a city of 65,000 people" (Judgment, paragraph 244). While the Court noted that this amount of the pollutant was a mere fraction of the total amount of nutrients being put into the river, it also referred to a section of the DINAMA Report that required that there be "compensation for any increase over and above the standard value for any of the critical parameters" (ibid., paragraph 245). Despite this clear requirement, the Orion (Botnia) mill was commissioned and allowed to begin adding its effluent to an already eutrophic river without providing the "compensation" required by DINAMA. The sewage treatment agreement that was concluded between Botnia and Uruguay is still at a project stage, even though the plant began to operate in November 2007. The fact that the river is already eutrophic, meaning that the addition of nutrients could potentially cause serious damage to the ecosystem, is critical.

76. The Court acknowledges that the level of concentration of total phosphorus in the River Uruguay exceeds the very limits established by Uruguayan legislation in respect of water quality standards (ibid., paragraph 247), standards that become applicable in the absence of CARU standards (ibid., paragraph 242). The Court also notes that DINAMA recommended in its Environmental Impact Assessment of 11 February 2005 that in light of the heavy load of nutrients (phosphorus and nitrogen) in the river, "it [was] not appropriate to authorize any waste disposal that would increase any of the parameters that present critical values" (ibid., paragraph 245; emphasis added). In addition, Uruguay pledged to abide by the regulations of the European Community, among which is the European Union Water Framework Directive which provides that in a river that is already eutrophic, no additional discharges of phosphorus are allowed. It follows that any additional discharges of phosphorus are contrary to the December 2001 Integrated Pollution Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper Industry of the European Commission (IPPC-BAT).

(iii) The algal bloom of February 2009

77. Uruguay never contested, nor has the Court addressed the issue, that the February 2009 scum was a toxic algal bloom of a magnitude, intensity and toxicity that has never been recorded in the river before — 1000 times higher than the historic maximum in the river — and that the bloom occurred after the Orion (Botnia) mill started operating.

78. Though the Court dismisses the possibility that nutrient discharges equivalent to a city of 65,000 people could truly be the "tipping point" that leads to toxic algal blooms, this determination is made without a coherent scientific basis. Even if it were true that the Orion (Botnia) mill only adds amounts of phosphorus which, as the Court says, is "insignificant in proportionate terms as compared to the overall total phosphorus in the river from other sources" (Judgment, paragraph 247), this does not alter the fact that the plant was and is adding phosphorus to the river without proper compensation through removal processes.

79. Claims to the effect that the yearly carnival at Gualeguaychu is the reason for the increase in phosphorus — an event which has not typically been accompanied by algal blooms in the past — merely reinforce the probability that the discharges from the pulp mill had a negative cumulative impact. Therefore, I cannot agree with the Court's position that such a link should be rejected without providing a scientific basis. It is reasonable to consider the likelihood of a link existing between the algal bloom and the Orion (Botnia) mill given that the operation of the plant represents a new circumstance. As with other data, the Court would have benefited greatly from a more detailed and expert evaluation of the scientific facts.

80. I also have difficulty understanding the Court's conclusion that the algal bloom episode of 4 February 2009 may not be linked, in light of the evidence in the record, to nutrient discharges from the Orion (Botnia) mill. During the proceedings, Argentina presented extensive data regarding this phenomenon which pointed to the Orion (Botnia) mill as a significant contributor. The evidence included satellite images showing the vast extent of the bloom, a river flow modelling based on actual data that matched precisely the distribution of the bloom, data indicating the presence in the scum, in addition to algae, of several effluent products coming directly from the Orion (Botnia) mill such as wood fibres, bacteria typically associated with wood pulp, namely, klebsiella, nonylphenol contaminants, and higher levels of sodium and AOX. The presence of those contaminants found in the scum provides clear evidence that the mill effluents contributed to the 4 February 2009 bloom.

(iv) Phenolic substances

81. Once again, the question of phenolic substances reveals the great deal of difficulty that the Court has faced in its attempts to resolve the scientific issues at stake in this case, including the difficulty of "identifying" and properly evaluating — among the numerous and complex scientific data produced by the Parties — the evidence and arguments in the record that are relevant.

In dealing with phenolic substances, the Court concluded that "there is insufficient evidence to attribute the alleged increase" (Judgment, paragraph 254) to the operation of the Orion (Botnia) mill. However, the CARU standard which sets the limit for phenolic substances at one microgramme per litre has been violated in the immediate vicinity of the Orion (Botnia) mill. According to the Uruguayan data submitted by Argentina, in the pre-operational phase of the Orion (Botnia) mill until November 2007, phenolic substances were below that maximum level as shown by Uruguay's State Agency for Sanitary Works (OSE) measurements in the Fray Bentos water intake, located just 3 km south of the Orion (Botnia) mill and 70 metres offshore. In contrast, the latest OSE data, from 13 November 2007 until 13 May 2009, show that since the Orion (Botnia) mill went into operation the average level of phenolic substances rose to three microgrammes per litre (the average was three times higher than CARU standards, with peak levels of 20.7 microgrammes per litre, which is 20 times higher than CARU standards). As phenols are present in the wood lignin, certain amounts of phenols will necessarily be part of the effluent from the Orion (Botnia) mill. During the proceedings, Argentina compared and contrasted DINAMA's data used by Uruguay, with the data collected by OSE, a government agency that makes ordinary assessments of water quality for the Fray Bentos water intake. However, the Judgment only reflects DINAMA's assessment even though the OSE data seems to be much more relevant to prove the quality and origin of the Orion (Botnia) mill's discharges. Had the Court taken into consideration the OSE data, the Court would have come to a different conclusion: that there is evidence to attribute an increase in the level of concentration of phenolic subtances in the river to the operation of the Orion (Botnia) mill.

82. Although the Court hinges its conclusion on the lack of evidence that the Orion (Botnia) mill was responsible, it does not directly address the discrepancies in the data or the credibility of the conclusions. But by determining that some of the Uruguayan data is more reflective of the realities on the river than others, the Court essentially draws conclusions about the scientific viability of the evidence without any scientific competence to do so. The Court would have been better served had it relied on clearer data and obtained a more convincing analysis of the evidence.

(v) Nonylphenols

83. In the case of nonylphenols and nonylphenolethoxylates, the Court again determines that even though the presence of these substances has been detected in areas most affected by the mill's discharged effluents, there is no convincing data that the plant is using these detergents.

84. I find it surprising that the conclusion of the Court is that there is not enough evidence in the record as to the claim made by Argentina that the Orion (Botnia) mill emits or has discharged nonylphenols into the river environment. In its Scientific and Technical Report submitted on 30 June 2009, Argentina presented extensive data showing the presence of nonylphenols in samples of water, sediments, settling particles, Asiatic clams and cyanobacteria found in the River Uruguay in the mill's area of influence (New Documents submitted by Argentina, Vol. I, Scientific and Technical Report, p. 41). The samples were taken during the 4 February 2009 algal bloom, but also during other periods, and all the samples show an increase in the level of nonylphenols. Additionally, during the oral hearings, Argentina presented an analysis of a pulp sample allegedly from the Orion (Botnia) mill that showed that the pulp contained nonylphenols. Uruguay never contested or rebutted these assertions by Argentina as to this sample, and the Court similarly does not address this evidence in the Judgment.

85. In addition to the affidavit from the Botnia official presented by Uruguay, Argentina also presented the Court on 19 October 2009 in response to the same question put forward by a judge, an affidavit prepared by a Canadian expert on pulp mills that confirms Argentina's expert team's findings regarding the use of nonylphenols.

86. The Court gave weight to the self-serving testimony of the Botnia employee that the mill does not use these detergents over evidence from Argentina that cleaning processes related to the use of this type of wood without detergents is almost impossible. Combined with the data that these detergents have been detected in areas rich with the mill's effluent — where they have already begun to affect the river's fauna — the Court's summary conclusion seems, at the very least, unsupported by the evidence. An independent expert on detergent use in pulp mills could have easily determined the credibility to be given to each Party's claims in this regard, but the Court decided that this amount of certainty was unnecessary.

87. I regret that the Court did not rely on all the relevant data submitted by the Parties in order to conclude that discharges from the Orion (Botnia) mill plant included nonylphenols.

(vi) Dioxins and furans

88. With regard to dioxins and furans, the Court again evaluates the scientific viability of the data of Argentina and Uruguay from a lay perspective and without the benefit of an independent expert opinion. The Court does not have the requisite expertise to ascertain what the appropriate method is for measuring dioxins and furans or whether the study by Botnia followed scientific or industry standards and how to link the presence of pollutants to the operation of the Orion (Botnia) mill.

(vii) Air pollution

89. The Court, in view of its own findings with respect to water quality, is of the opinion "that the record does not show any clear evidence that substances with harmful effects have been introduced into the aquatic environment of the river through the emissions of the Orion (Botnia) mill into the air" (Judgment, paragraph 264).

90. In my view, the Court fails to take due consideration of the fact that Article 36 of the 1975 Statute establishes the obligation to co-ordinate through CARU the necessary measures to control "harmful factors in the river and the areas affected by it" and that Article 41 states the obligation to prevent pollution. Recreational and bathing activities take place in the river and in areas affected by it. The Digest of the uses of the River Uruguay, in the Chapter on Pollution, defines "industrial pollution" as "caused by gas emissions stemming from industrial activities (Digest, Theme E3: Pollution, Title 1, Chap. 1, Sec. 2: Definitions, Art. 1 (b)), while the definition of "harmful effects" includes threats to health and reductions in recreational activities (Chap. 1, Sec. 2).

91. In my view, the Court fails to recognize that air pollution linked to the Orion (Botnia) mill may affect not only the River Uruguay but also the areas affected by it, including human health and recreational activities. The Court consequently makes no assessment of the potential impact in this regard.

V. Final remarks on substantive obligations

92. Given the scientific complexity of the case, it is my considered belief that the Court should have availed itself of the provisions in its Rules aimed at enabling the Court to gain a clearer understanding of technical evidence. This approach would have allowed the Court to reach its conclusions regarding the substantive obligations of Uruguay with scientific certainty.

93. How is the Court to fulfil its "responsibility . . . to determine which facts must be considered relevant, to assess their probative value, and to draw conclusion from them" (Judgment, paragraph 168) in the face of the volume and complexity of the factual information submitted to it by the Parties? The Judgment states that "in keeping with its practice, the Court will make its own determination of the facts" (ibid.). However, the Court's Statute provides that: "The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion." (Art. 50.) The Court has made use of its powers under Article 50 twice. In the Corfu Channel case, it first appointed a committee of three naval experts on a question of fact, contested between the parties and relevant for the question of Albania's responsibility (Corfu Channel (UnitedKingdom v. Albania), Order of 17December 1948, I.C.J. Reports 1947-1948, p. 124 et seq). Once the committee had submitted its report, the Court decided that it should proceed with an in situ examination and submit a second report (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, Decision of 17 January 1949, p. 151). The Court relied on the advice of a second committee in order to assess the amount of compensation owed to the United Kingdom. Moreover, in the Gulf of Maine case, the Chamber followed a request by the parties that it appoint a technical expert in order to assist in the delimitation of the maritime boundary (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Appointment of Expert, Order of 30March 1984, I.C.J. Reports 1984, p. 165 et seq. and reference in the Judgment, I.C.J. Reports 1984, p. 265, para. 18). Although the appointment was made following a request by the parties, it came within the scope of Article 50.

94. The PCIJ also decided at the indemnities stage of the Chorzow Factory case to seek expert advice before fixing the amount of compensation (Factory at Chorzow, Order of 13 September 1928, P.C.I.J., Series A, No. 17, pp. 99 et seq.).

95. In conclusion, seeking an expert opinion to resolve matters of fact in the light of the complexity of the evidence would have been entirely consistent with the practice of the Court. Article 50 of the Statute was conceived precisely for cases like the current one. The Court could and should have called for an expert opinion to assess the scientific and factual evidence presented by the Parties. Whatever delay might have been caused by the additional investigation would have been outweighed by the Court's increased competence to render an effective Judgment. The Court does itself a disservice by not ensuring that its ruling is based on factual certainty.

96. In my view, the Court's own findings raise doubts concerning the presence or absence of pollutive factors in the river associated with discharges from the Orion (Botnia) mill. The Court's conclusions, to my mind, do not dispel the likelihood of a link between the Orion (Botnia) mill and the unprecedented algal bloom in February 2009, the presence of phenolic substances, and the detection of prohibited nonylphenols in pulp samples and in the aquatic environment, as well as the detection of dioxins and furans in the aquatic environment of the River Uruguay and in the air.

97. are not considered individually by the Court as satisfactorily established, I do strongly believe that if they were taken into account as a whole these polluted discharges from the mill evidence Uruguay's non-compliance with its substantive obligations to ensure the optimum and rational utilization of the River Uruguay.

98. I would finally like to express my disappointment with the Court's approach when dealing with substantive obligations under the 1975 Statute. To my understanding the Court should have taken into account not only the actual impact of the discharges from the Orion (Botnia) mill, but also the cumulative long-term effects of those discharges in light of the 40-year lifespan of the plant. The discharges from the Orion (Botnia) mill over its lifetime are not a mere expectation but a certainty to come. In that context, the Executive Summary of Argentina's Scientific and Technical Report submitted to the Court on 30 June 2009 states that "The main outcome of this study is the detection of changes associated to the pulp mill activities that could act as an early warning framework to anticipate future major and more irreversible ecosystem damages." (Emphasis in the original.)

99. As the Court has stated in the past: "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" (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 241, para. 29); and also that:

"The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind — for present and future generations — of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development." (Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140..)

100. In due consideration to these past findings of the Court, I regret that by not taking into account the long-term effects of the already existing pollution attributable to the Orion (Botnia) mill, the Court, in my opinion, pre-empted its opportunity to apply the precautionary principle to properly prevent pollution and preserve the aquatic environment of the River Uruguay in conformity with the 1975 Statute and general international law.

(Signed) Raul VINUESA.

 
     

 

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