Case concerning Pulp Mills on the River Uruguay.

AuthorTully, Stephen
PositionStatute of the River Uruguay 1975

Introduction

On 4 May 2006 Argentina, appearing before the International Court of justice (the Court or ICJ) for the first time, claimed treaty violations committed by Uruguay and submitted a request for the indication of provisional measures. Argentina claimed that Uruguay's commissioning of two pulp mills on the River Uruguay posed significant pollution risks, harmful health effects, lost fishery resources for local inhabitants and serious consequences for its economic interests including tourism. Argentina challenged the adequacy of Uruguay's environmental impact assessments and sought an order suspending construction. Oral proceedings were held on 8 and 9 June 2006. (1) On 13 July 2006, the Court, by 14 votes to one, (2) found that the circumstances were not such as to require the orders sought.

  1. The Request for the Indication of Provisional Measures

    1. Legal and Factual Context to the Dispute

      The Statute of the River Uruguay ('the 1975 Statute') is a treaty signed in 1975 between Argentina and Uruguay concerning the River Uruguay as their common boundary.(3) its Preamble proclaims the 'fraternal spirit' between these two states. Article 1 identifies the object and purpose as the joint regulation of a regime for river navigation, conserving, utilising and exploiting natural resources and avoiding river water pollution. Article 1 also establishes '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'. An Administrative Commission of the River Uruguay (CARU in the Spanish acronym) is responsible for regulation and co-ordination.

      Argentina asserts that articles 7 to 13 of the 1975 Statute envisage an obligatory procedure of prior notification and consultation through CARU for any party planning to carry out works liable to affect navigation, the river regime or water quality. It claims that in 2003 Uruguay unilaterally authorised a Spanish company (ENCE) to construct a pulp mill near the town of Fray Bentos (the 'Celulosa de M'Bopicua' or 'CMB' plant) without complying with these prior obUgations. Argentina maintains that Uruguay refused to follow the prescribed procedures notwithstanding repeated protests to Uruguay and CARU. In 2005 Uruguay subsequently authorised a Finnish company ('Oy Metsa-Botnia AB' or 'Botnia') to construct a second pulp mill (the 'Orion' mill) in the vicinity7 of the CMB plant. The CMB mill was expected to be commissioned in 2008 with the Orion mill commencing operations during 2007. Argentina also understood that Uruguay was in the process of authorising the construction of a third mill by the Stora Enso company on the Rio Negro, a tributary of the River Uruguay.

      Argentina's application in the principal proceedings requests the ICJ 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 Statute refers, including:

      (a) the obligation to take all necessary measures for the optimum and rational use of the River Uruguay;

      (b) the obligation of prior notification to CARU and Argentina;

      (c) the obligation to comply with the procedures prescribed under the 1975 Statute;

      (d) the obligation to take all necessary measures to preserve the aquatic environment, prevent pollution, protect biodiversity and fisheries and prepare a full and objective environmental impact study;

      (e) the obligation to co-operate in preventing pollution and protecting biodiversity and fisheries;

      (2) that, by its conduct, Uruguay has engaged its international responsibility to Argentina;

      (3) that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligations incumbent upon it; and

      (4) that Uruguay shall make full reparation for the injury caused by its breach of these obligations. (4)

    2. Jurisdictional Basis for the Indication of Provisional Measures

      Provisional measures are indicated where die provisions invoked by the applicant appear, prima facie, to afford a basis upon which die Court's jurisdiction might be established. (5) Argentina maintained that article 60 of the 1975 Statute constituted such a provision and that the two States, having followed articles seven to 11, had failed to agree on matters liable to affect the river regime, navigation or water quality. Uruguay accepted that article 60 established die Court's jurisdiction but only in relation to the rights Argentina was entitled to claim under the 1975 Statute, that is, any possible effects stemming directly from the mills that impaired river water quality. Any other claimed socio-economic impacts (including tourism, urban and rural property values, professional activities and unemployment levels) and other aspects of transboundary environmental protection were not covered rat/one makriae. In any event, Argentina had failed to offer evidence relevant to those claims. Argentina maintained that the 1975 Statute encompassed not only river pollution but also pollution resulting from river use and the socio-economic consequences of commissioning the mills.

      Argentina also submitted that previous dispute resolution procedures had failed, thereby satisfying an essential precondition to the ICJ exercising jurisdiction under Article 60. (6) Uruguay responded that the dispute had been settled under an oral bilateral agreement in 2004 to the effect that the mills could be built according to Uruguay's plans, Argentina would receive operational information and CARU would monitor river water quality for compliance with the 1975 Statute. Argentina retorted that the agreement was simply for Uruguay to transmit all information concerning CMB to CARU, which it had failed to do, and that CARU would commence monitoring water quality.

      The Court concluded that it need not resolve these questions concerning the ambit of the 1975 Statute at this stage of proceedings, being satisfied that article 60 provided a basis upon which its jurisdiction could be established. (7)

    3. Decision on the Indication of Provisional Measures

      The Court may indicate, if it considers that circumstances so require, any provisional measures that ought to be taken to preserve the respective rights of either party pending a final decision on the merits. (8) Its prior jurisprudence requires there to be an urgent need to prevent irreparable prejudice to the rights in dispute. (9)

      Argentina requested the Court to indicate that, pending final judgment, Uruguay shall:

      (i) suspend all authorisations for constructing the CMB and Orion mills;

      (ii) take all necessary measures to suspend building work on the Orion mill;

      (iii) take all necessary measures to ensure that suspending construction on the CMB mill is prolonged beyond 28 June 2006;

      (iv) co-operate in good faith with Argentina to ensure the optimum and rational utilization of the River Uruguay in order to protect and preserve the aquatic environment and prevent pollution;

      (v) refrain from taking any further unilateral action concerning construction of the CMB and Orion mills which does not comply with the 1975 Statute and the rules of international law necessary for its interpretation and application;

      (vi) refrain from any other action which might aggravate or extend the dispute or render settlement more difficult.

      Argentina argued that mill construction had already caused significant damage and would be commissioned before the Court rendered a final judgment...

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