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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.
--------------------------------------------------------------------------------
[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).
--------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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").
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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]
----------------------------------------------------------------------------------------------------------------
[FN12] Ibid., pp. 324-325.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
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]”.
----------------------------------------------------------------------------------------------------------------
[FN35] Ibid., pp. 913-914.
[FN36] Ibid, p. 926.
[FN37] Ibid., p. 927.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
(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.
----------------------------------------------------------------------------------------------------------------
[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..
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN54] United Nations, General Assembly resolution 2625(XXV).
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN59] A.-Ch. Kiss, Droit international de l'environnement, Paris, Pédone,
1989, p. 202.
[FN60] Ibid., p. 43, and cf. pp. 39 and 60.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN61] The two dialogues, Timaeus and fragmentary Critias, belong to the
later years of Plato's life.
----------------------------------------------------------------------------------------------------------------
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]
----------------------------------------------------------------------------------------------------------------
[FN62] J. Burckhardt, The Civilization of the Renaissance in Italy, N.Y.,
Barnes & Noble Books, 1992, pp. 178-179.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN63] J. Juste Ruiz, Derecho Internacional del Medio Ambiente, Madrid,
McGraw-Hill, 1999, pp. 72-73.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN67] Ibid., pp. 113-114.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN68] To paraphrase the renowned theatrical play.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN69] N. de Sadeleer, Environmental Principles – From Political Slogans to
Legal Rules, Oxford, University Press, 2002, pp. 91, 127, 164 and 170.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN70] Plato, Apology of Socrates [399 b.C.], 21b-d; 22a,c; 22d; 23a-b.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN73] N. de Sadeleer, Environmental Principles . . ., op. cit. supra n.
(70), pp. 178, 203, 207 and 212.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN74] Bertrand Russell, "Knowledge and Wisdom", in Essays in Philosophy
(ed. H. Peterson), N.Y., Pocket Library, 1960 [reprint], pp. 499 and 502.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN78] E. Morin, Science avec conscience, 2nd ed., Paris, Fayard/Seuil,
2003, pp. 8-11, 17, 19, 23, 35 and 38.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN79] To paraphrase a well-known allegory of another lucid thinker of the
XXth century.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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)).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN82] Article 60 of which provides the basis of jurisdiction for the ICJ.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN88] Rejoinder of Uruguay, para. 5.66.
[FN89] Ibid., para. 5.67.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN90] Reply of Argentina, paras. 4.55-4.56.
[FN91] Memorial of Argentina, para. 7.128.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN94] Rejoinder of Uruguay, para. 5.59.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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]
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN102] Cf., inter alia, note (98), supra.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN103] ICJ, CR 2009/20, p. 35.
[FN104] ICJ, CR 2009/17, p. 57, para. 30.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN105] As recalled by the IACtHR's Judgment, of 31 August 2001 (merits),
para. 83.
----------------------------------------------------------------------------------------------------------------
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.)
----------------------------------------------------------------------------------------------------------------
[FN106] H. Arendt, Between Past and Future, N.Y., Penguin, 1993 [reprint],
pp. 211-213.
[FN107] Ibid, pp. 225-226.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN113] Such as, among others, those formed by the poorest segments of
society.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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]
----------------------------------------------------------------------------------------------------------------
[FN121] Memorial of Argentina, para. 3.180.
[FN122] Ibid.,, paras. 5.6-5.7, and cf. also para. 5.8.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN123] Ibid., para. 5.5.
[FN124] Ibid, para. 3.153.
----------------------------------------------------------------------------------------------------------------
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'" .
----------------------------------------------------------------------------------------------------------------
[FN125] Counter-Memorial of Uruguay, para. 1.26.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN126] Ibid., para. 2.33.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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)).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN137] Cf. Memorial of Argentina, paras. 6.54-6.63; Rejoinder of Uruguay,
paras. 6.82-6.87.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
"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].
----------------------------------------------------------------------------------------------------------------
[FN143] ICJ, Nuclear Tests cases (New Zealand v. France, Vol. II)—Pleadings,
Oral Arguments, Documents, p. 7.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN144] Ibid, pp. 4 and 8.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN147] ICJ, Application Instituting Proceedings (of 4 May 2006), Pulp Mills
case, para. 9.
[FN148] Ibid., para. 12.
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN154] Cf. Memorial of Argentina, Vol. V, Ann. 12, p. 704; and
Counter-Memorial of Uruguay, Vol. II, Ann. 12, p. 1.
----------------------------------------------------------------------------------------------------------------
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").
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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]
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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).
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[FN166] Memorial of Argentina, paras. 3.66-3.70; and Reply of Argentina,
paras. 1.158-1.160
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN167] Counter-Memorial of Uruguay, paras. 2.189-2.205, and cf. Vol. IV,
Anns. 82 and 84.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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].
----------------------------------------------------------------------------------------------------------------
[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)
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[FN178] Nullum crimen sine lege, nulla poena sine lege.
[FN179] And of equidistance and of special circumstances (in delimitation of
maritime spaces).
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.)
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
[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.
----------------------------------------------------------------------------------------------------------------
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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