Pulp Mills (Argentina v Uruguay) [International Court of Justice]
| Jurisdiction | Derecho Internacional |
| Judge | Torres Bernárdez,Owada,Cançado Trindade,Yusuf,Parra-Aranguren,Bennouna,Tomka,Buergenthal,Shi,Ranjeva,Keith,Skotnikov,Vinuesa,Abraham,Al-Khasawneh,Higgins,Sepúlveda-Amor,Greenwood,Koroma,Simma |
| Court | International Court of Justice |
| Date | 05 April 2010 |
International Court of Justice
First Request for Provisional Measures.
Second Request for Provisional Measures.
Merits.
(Higgins, President; Al-Khasawneh, Vice-President; Ranjeva, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Seplveda-Amor, Bennouna and Skotnikov, Judges; Torres Bernrdez2 and Vinuesa,3Judges ad hoc)
(Higgins, President; Al-Khasawneh, Vice-President; Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith, Seplveda-Amor, Bennouna and Skotnikov, Judges; Torres Bernrdez and Vinuesa, Judges ad hoc)
(Tomka, Vice-President (Acting President); Koroma, Al-Khasawneh, Simma, Abraham, Keith, Seplveda-Amor, Bennouna, Skotnikov, Canado Trindade, Yusuf and Greenwood, Judges; Torres Bernrdez and Vinuesa, Judges ad hoc)
Environment Transboundary pollution Rivers River constituting international boundary River Uruguay Regime for balancing economic development with protection of riverine environment Boundary treaty between Argentina and Uruguay concluded in 1961 Statute of the River Uruguay, 1975 Procedural and substantive obligations Proof of breach of substantive obligations Evidence of effect of discharges upon water quality
Environment General principles of international environmental law Principle of prevention Precautionary principle Requirement to conduct environmental impact assessment Scope and conduct of environmental impact assessment
International Court of Justice Provisional measures of protection Criteria Requirement that measures must be urgently needed to protect rights which might form subject of judgment Request for provisional measures by Respondent Whether appropriate to order Applicant to prevent blockade of bridge by private citizens Measures calling upon Parties to abstain from conduct likely to aggravate or extend dispute
International Court of Justice Evidence Burden of proof Standard of proof Scientific evidence Power of Court to appoint expert Power of Court to make own inquiry into facts Expert evidence Experts appearing as counsel Whether evidence sufficient to establish harmful environmental effects Appraisal of scientific evidence by Court
International organizations Administrative Commission of the River Uruguay (CARU) Legal personality Nature and role of CARU Whether more than a framework for discussions between States Parties Regulatory role
Rivers Pollution River Uruguay Regime for balancing economic development with protection of riverine environment Boundary treaty between Argentina and Uruguay concluded in 1961 Statute of the River Uruguay, 1975 Protection of water quality and environment
Treaties Interpretation and application Treaty on environmental protection Interlocking nature of obligations Procedural and substantive obligations
Summary: The facts:The boundary between Argentina and Uruguay in the River Uruguay6 was defined by a treaty concluded between the two States on 7 April 1961 (the 1961 Treaty). Article 7 of the 1961 Treaty provided for the establishment by the two States of a regime for the use of the river, to cover, inter alia, the conservation of living resources and the prevention of water pollution. In 1975 the two States adopted the Statute of the River Uruguay (the 1975 Statute) 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 the treaties and other international agreements in force for each of the parties. The 1975 Statute contained both substantive and procedural provisions. Its substantive provisions laid down rules regarding navigation and works on the river, the use of the waters and resources of the bed and subsoil and the conservation, use and development of other natural resources. The 1975 Statute established the Comisin Administradora (CARU), a body comprising representatives of both parties. Article 7 of the Statute required a party which was planning any works which are liable to affect navigation, the regime of the river or the quality of its waters to follow a series of procedural steps set out in Articles 712.7 Those obligations involved both notifying the other party of the planned activities and informing CARU.8 In the event that the parties then failed to reach agreement regarding the proposed activities, the mechanism in Chapter XV was to apply. Chapter XV contained only one provision, Article 60, paragraph 1 of which stipulated that any dispute concerning the interpretation or application of the [1961] Treaty and the [1975] Statute which cannot be settled by direct negotiations may be submitted by either party to the International Court of Justice.
Relying on Article 60(1) of the 1975 Statute as the basis for jurisdiction, Argentina brought proceedings against Uruguay regarding the authorization, construction and future commissioning of two pulp mills, the CMB (ENCE) project and the Orion (Botnia) project, and a port terminal which private companies were proposing to construct on the Uruguayan side of the River Uruguay near the city of Fray Bentos. Argentina maintained that, in authorizing the companies to proceed with different stages of these projects, Uruguay had
failed to comply with its procedural and substantive obligations under the 1975 Statute. According to Argentina, Uruguay had unilaterally authorized the construction of the two mills and the port terminal without formal notification to Argentina or notification of CARU, as required by Article 7 of the 1975 Statute, and thereafter had failed to observe the procedures required by Articles 8 to 12 of the StatuteArgentina maintained that Uruguay's conduct also contravened its substantive obligations:
(a) to contribute to the optimal and rational utilization of the river (Article 1 of the 1975 Statute);9
(b) to ensure that the management of the soil and woodland did not impair the regime of the river or the quality of its waters (Article 35 of the 1975 Statute);10
(c) to coordinate measures to avoid changes in the ecological balance (Article 36 of the 1975 Statute);11 and
(d) to prevent pollution and preserve the aquatic environment (Article 41 of the 1975 Statute).12
In addition, Argentina maintained that the effect of Article 41 was to incorporate by reference other treaty obligations of each State, so that it was also entitled to claim in respect of the violation by Uruguay of its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (the CITES Convention), the Ramsar Convention on Wetlands of International Importance, 1971 (the Ramsar Convention), the United Nations Convention on Biological Diversity, 1992 (the Bio-diversity Convention) and the Stockholm Convention on Persistent Organic Pollutants, 2001 (the PoPs Convention).
On the same day that it filed its Application, Argentina filed a request for provisional measures of protection. It contended that, if Uruguay went ahead with the construction of the pulp mills and the port terminal, there was an immediate threat of serious and irreparable damage to the rights which Argentina claimed. It sought provisional measures directing Uruguay to suspend all authorizations for construction, take all necessary measures to suspend work on construction of the Orion (Botnia) mill and to ensure that the suspension of building work on the CMB mill was maintained and to take measures conducive to cooperation between the Parties. Uruguay maintained that it had discharged its obligations under the 1975 Statute, and that there was no threat of serious and irreparable harm to Argentina's rights under that instrument. Uruguay
affirmed that it intended to comply in full with all obligations under the 1975 Statute and to conduct joint monitoring with ArgentinaHeld (by fourteen votes to one):The circumstances were not such as to require the Court to exercise its power to indicate provisional measures.
(1) The power of the Court to indicate provisional measures had as its object to permit the Court to preserve the respective rights of the parties pending the final decision in the case, provided that such measures were necessary to prevent irreparable damage to the rights that were in dispute. That power was to be exercised only if there was an urgent need to prevent irreparable damage to such rights (paras. 602).
(2) Argentina had not established that, if Uruguay were violating the procedural and substantive rights of Argentina, those violations were not capable of being remedied at the merits stage of the proceedings. It had not been shown that authorization of construction of the mills, or their actual construction, would inflict irreparable damage to Argentina's rights. Accordingly, it was not necessary to indicate measures requiring the suspension of work (paras. 707).
(3) The 1975 Statute was designed to allow for sustainable development which took account of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States. The Parties were under an obligation to comply with the 1975 Statute. That obligation had to be performed in good faith. In view of Uruguay's affirmation that it would do so, it was not necessary to indicate measures calling upon the Parties to cooperate (paras. 7884).
(4) The Court called upon the Parties to fulfil their obligations under international law and to implement in good faith the procedures provided for by the 1975 Statute (para. 82).
Declaration of Judge Ranjeva: The Court should examine the purpose of the provisional measures sought so as to ensure that the Party seeking those measures was not attempting to obtain a provisional judgment on the merits (pp. 367).
Separate Opinion of Judge Abraham: At the provisional measures stage, the Court was necessarily faced with conflicting rights (or alleged...
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