Internacional Público
Rindo Introducción. Público en Febrero, y seguramente me van a preguntar por el tema de las Papeleras. De donde saco información? Alguien me puede decir cúal es la situación del asunto (jurídicamente hablando, claro)? Porque los medios sirven poco y nada,
Gracias.-
Gracias.-
Respuestas
BJL Súper Moderador
Creado: 27/01/07
Sumario del Fallo del 2006
Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
Request for the indication of provisional measures
Summary of the Order of 13 July 2006
Application and request for the indication of provisional measures
The Court recalls that, by an Application filed in the Registry of the Court on 4 May 2006, the Argentine Republic (hereinafter “Argentina”) instituted proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”) for the alleged breach by Uruguay of obligations under the Statute of the River Uruguay, which was signed by Argentina and Uruguay on 26 February 1975 and entered into force on 18 September 1976 (hereinafter the “1975 Statute”). In its Application, Argentina claims that that breach arises from “the authorization, construction and future commissioning of two pulp mills on the River Uruguay”, with reference in particular “to the effects of such activities on the quality of the waters of the River Uruguay and on the areas affected by the river”. Argentina explains that the 1975 Statute was adopted in accordance with Article 7 of the Treaty defining the boundary on the River Uruguay between Argentina and Uruguay, signed at Montevideo on 7 April 1961 and which entered into force on 19 February 1966, which provided for the establishment of a joint régime for the use of the river.
Argentina bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on the first paragraph of Article 60 of the 1975 Statute, which provides as follows: “Any dispute concerning the interpretation or application of the [1961] Treaty and the [1975] Statute which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice”. Argentina claims that direct negotiations between the Parties have failed.
According to Argentina, the purpose of the 1975 Statute is “to establish the joint machinery necessary for the optimum and rational utilization” of that part of the River Uruguay which is shared by the two States and constitutes their common boundary. In addition to governing “activities such as conservation, utilization and development of other natural resources”, the 1975 Statute deals with “obligations of the Parties regarding the prevention of pollution and the liability resulting from damage inflicted as a result of pollution” and sets up an “Administrative Commission of the River Uruguay” (hereinafter “CARU”, in its Spanish acronym) whose functions include regulation and co-ordination. Argentina submits, in particular, that Articles 7 to 13 of the Statute provide for an obligatory procedure for prior notification and consultation through CARU for any party planning to carry out works liable to affect navigation, the régime of the river or the quality of its waters.
Argentina states that the Government of Uruguay, in October 2003, “unilaterally authorized the Spanish company ENCE to construct a pulp mill near the city of Fray Bentos”, a project known as “Celulosa de M’Bopicuá” (hereinafter “CMB”), and claims that this was done without complying with the above-mentioned notification and consultation procedure. It maintains that, despite its repeated protests concerning “the environmental impact of the proposed mill”, made both directly to the Government of Uruguay and to CARU, “the Uruguayan Government has persisted in its refusal to follow the procedures prescribed by the 1975 Statute”, and that Uruguay has in fact “aggravated the dispute” by authorizing the Finnish company Oy Metsä-Botnia AB (hereinafter “Botnia”) in February 2005 to construct a second pulp mill, the “Orion mill”, in the vicinity of the CMB plant. According to Argentina the “Uruguayan Government has further aggravated the dispute” by issuing authorization to Botnia in July 2005 “for the construction of a port for the exclusive use of the Orion mill without following the procedures prescribed by the 1975 Statute”.
Argentina concludes its Application by requesting the Court to
“adjudge and declare:
1. that Uruguay has breached the obligations incumbent upon it under the 1975 Statute and the other rules of international law to which that instrument refers, including but not limited to:
(a) the obligation to take all necessary measures for the optimum and rational utilization of the River Uruguay;
(b) the obligation of prior notification to CARU and to Argentina;
(c) the obligation to comply with the procedures prescribed in Chapter II of the 1975 Statute;
(d) the obligation to take all necessary measures to preserve the aquatic environment and prevent pollution and the obligation to protect biodiversity and fisheries, including the obligation to prepare a full and objective environmental impact study;
(e) the obligation to co-operate in the prevention of pollution and the protection of biodiversity and of fisheries; and
2. that, by its conduct, Uruguay has engaged its international responsibility to Argentina;
3. that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligations incumbent upon it; and
4. that Uruguay shall make full reparation for the injury caused by its breach of the obligations incumbent upon it.”
The Court recalls that, after filing its Application on 4 May 2006, Argentina also submitted a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and to Article 73 of the Rules of Court, in which it refers to the basis of jurisdiction of the Court invoked in its Application, and to the facts set out therein. At the conclusion of its request for the indication of provisional measures Argentina asks the Court to indicate that:
“(a) pending the Court’s final judgment, Uruguay shall:
(i) suspend forthwith all authorizations for the construction of the CMB and Orion mills;
(ii) take all necessary measures to suspend building work on the Orion mill; and
(iii) take all necessary measures to ensure that the suspension of building work on the CMB mill is prolonged beyond 28 June 2006;
(b) Uruguay shall co-operate in good faith with Argentina with a view to ensuring the optimum and rational utilization of the River Uruguay in order to protect and preserve the aquatic environment and to prevent its pollution;
(c) pending the Court’s final judgment, Uruguay shall refrain from taking any further unilateral action with respect to construction of the CMB and Orion mills which does not comply with the 1975 Statute and the rules of international law necessary for the latter’s interpretation and application;
(d) Uruguay shall refrain from any other action which might aggravate or extend the dispute which is the subject-matter of the present proceedings or render its settlement more difficult.”
Arguments of the Parties at the hearings
The Court observes that at the hearings, which took place on 8 and 9 June 2006, Argentina reiterated the arguments set out in its Application and its request for the indication of provisional measures, and claimed that the conditions for the indication of provisional measures had been fulfilled.
Argentina inter alia argued that its rights under the 1975 Statute arose in relation to two interwoven categories of obligations: “obligations of result that are of a substantive character, and obligations of conduct that have a procedural character”. With respect to substantive obligations, Argentina observed that Article 41 (a) of the 1975 Statute created for it at least two distinct rights: first, “the right that Uruguay shall prevent pollution” and, second, “the right to ensure that Uruguay prescribes measures ‘in accordance with applicable international standards’”, and Argentina claimed that Uruguay had respected neither of these obligations. Argentina further asserted that the substantive obligations under the Statute included “Uruguay’s obligation not to cause environmental pollution or consequential economic losses, for example to tourism”. It added that Articles 7 to 13 of the 1975 Statute and Article 60 thereof give it a number of procedural rights: “first, the right to be notified by Uruguay before works begin; secondly, to express views that are to be taken into account in the design of a proposed project; and, thirdly, to have th[e] Court resolve any differences before construction takes place”. Argentina emphasized that, according to Articles 9 and 12 of the 1975 Statute, Uruguay had the obligation “to ensure that no works are carried out until either Argentina has expressed no objections, or Argentina fails to respond to Uruguay’s notification, or the Court had indicated the positive conditions under which Uruguay may proceed to carry out works”. It submitted that none of these three conditions had yet been met, despite the fact that the above-mentioned procedures are mandatory and “admit of no exception”. Argentina further emphasized that, in its view, Article 9 of the 1975 Statute “established a ‘no construction’ obligation . . . of central importance to this phase of the proceedings”.
Argentina maintained that its rights, derived from both substantive and procedural obligations, were “under immediate threat of serious and irreparable prejudice”, contending that the site chosen for the two plants was “the worst imaginable in terms of protection of the river and the transboundary environment” and that environmental damage was, at the least, “a very serious probability” and would be irreparable. It submitted that economic and social damage would also result and would be impossible to assess, and further contended that the construction of the mills “[was] already having serious negative effects on tourism and other economic activities of the region”, including suspension of investment in tourism and a drastic decline in real estate transactions. Argentina asserted that there was no doubt that the condition of urgency necessary for the indication of provisional measures was satisfied, since “when there is a reasonable risk that the damage cited may occur before delivery of judgment on the merits, the requirement of urgency broadly merges with the condition [of the] existence of a serious risk of irreparable prejudice to the rights in issue”. Moreover, it observed that the construction of the mills was “underway and advancing at a rapid rate” and that the construction itself of the mills was causing “real and present damage” and noted that the mills “would patently be commissioned before [the Court] [would be] able to render judgment” since commissioning was scheduled for August 2007 for Orion and June 2008 for CMB. Argentina claimed that the suspension of both the authorizations for the construction of the plants and of the construction work itself was the only measure capable of preventing the choice of sites for the plants becoming a fait accompli and would avoid aggravating the economic and social damage caused by the construction of the plants.
The Court then considers the arguments put forward by Uruguay. It notes that Uruguay stated that it “had fully complied with the 1975 Statute of the River Uruguay throughout the period in which this case has developed” and argued that Argentina’s request was unfounded and that the requisite circumstances for a request for provisional measures were entirely lacking.
Uruguay stated that it did not dispute that Article 60 of the 1975 Statute constituted a prima facie basis for the jurisdiction of the Court to hear Argentina’s request for the indication of provisional measures, but that this provision establishes the Court’s jurisdiction only in relation to Argentina’s claims concerning the 1975 Statute and not for disputes falling outside the Court’s jurisdiction, such as those concerning “tourism, urban and rural property values, professional activities, unemployment levels, etc.” in Argentina, and those regarding other aspects of environmental protection in transboundary relations between the two States. It contended that Argentina’s request for the indication of provisional measures must be rejected because the breaches of the Statute of which Uruguay is accused “prima facie lack substance” and, in “applying both the highest and the most appropriate international standards of pollution control to these two mills”, Uruguay had “met its obligations under Article 41 of the Statute”. Uruguay further stated that it had “discharged the obligations imposed upon it by Articles 7 et seq. [of the 1975 Statute] in good faith”. In particular, it contended that those Articles did not give either party a “right of veto” over the implementation by the other party of industrial development projects, but were confined to imposing on the parties an obligation to engage in a full and good-faith exchange of information under the procedures provided by the Statute or agreed between them. Uruguay noted that it had complied fully with that obligation by “inform[ing] Argentina - through CARU or through other channels - of the existence of th[e] [pulp mill] projects, describing them in detail with an impressive amount of information”, and by “suppl[ying] all the necessary technical data to make Argentina aware of the absence of any risk in regard to their potential environmental impact on the River Uruguay”. It further asserted that it was the first time “in the 31 years since the [1975] Statute came into being” that Argentina had claimed it had “a procedural right under the Statute, not only to receive notice and information and to engage in good faith negotiations, but to block Uruguay from initiating projects during [the] procedural stages and during any litigation that might ensue”. Uruguay moreover stated that the dispute between Uruguay and Argentina over the pulp mills had in reality been settled by an agreement entered into on 2 March 2004 between the Uruguayan Minister for Foreign Affairs and his Argentine counterpart, by which the two Ministers had agreed, first, that the CMB mill could be built according to the Uruguayan plan, secondly, that Uruguay would provide Argentina with information regarding its specifications and operation and, thirdly, that CARU would monitor the quality of the river water once the mill became operational in order to ensure compliance with the Statute. According to Uruguay, the existence of this agreement had been confirmed a number of times, inter alia, by the Argentine Minister for Foreign Affairs and by the Argentine President, and its terms had been extended so as to apply also to the projected Orion mill.
Moreover, according to Uruguay there is no current or imminent threat to any right of Argentina, so that the conditions of risk of irreparable harm and urgency are not fulfilled. In support of its position, Uruguay inter alia explained that the environmental impact assessments so far undertaken, as well as those to come, and the regulatory controls and strict licensing conditions imposed by Uruguayan law for the construction and operation of the mills, guaranteed that the latter would not cause any harm to the River Uruguay or to Argentina, and that they would abide by the strict requirements imposed by “the latest European Union 1999 International Pollution Prevention and Control (IPPC) recommendations, with which compliance is required by all pulp plants in Europe by 2007”. Uruguay pointed out that the mills would not be operational before August 2007 and June 2008 respectively, and that a number of further conditions would have to be met before that stage was reached. Uruguay concluded that, even if it were to be considered that the operation of the mills might lead to “the contamination of the river”, the gravity of the “alleged peril to Argentina” was not “sufficiently certain or immediate as to satisfy the Court’s requirement that it be ‘imminent’ or urgent”.
Lastly, Uruguay argued that suspending constructions of the mills would cause such economic loss to the companies involved and their shareholders that it would be highly likely to jeopardize the entire two projects. Uruguay contended that the provisional measures sought by Argentina would therefore irreparably prejudice its sovereign right to implement sustainable economic development projects in its own territory. It pointed out in this connection that the pulp mill projects represented the largest foreign investment in Uruguay’s history, that construction in itself would create many thousands of new jobs and that, once in service, the mills would have “an economic impact of more than $350 million per year”, representing “an increase of fully 2 per cent in Uruguay’s gross domestic product”.
In its second round of oral observations Argentina inter alia maintained that, according to Article 42 of the 1975 Statute and established international principles, the 1975 Statute covered not only the pollution of the river, as claimed by Uruguay, but also pollution of all kinds resulting from the use of the river as well as the economic and social consequences of the mills. Argentina strongly disputed Uruguay’s assertion that it had prima facie fulfilled its obligations under the 1975 Statute; it observed that the projects had never been formerly notified to CARU by Uruguay, and that Uruguay had not provided adequate information regarding the pulp mills. Argentina further asserted that there was no bilateral agreement of 2 March 2004 to the effect that construction of the CMB mill could proceed as planned. It contended that the arrangement reached at the meeting of that date between the Ministers for Foreign Affairs of the two States was simply that Uruguay would transmit all the information on CMB to CARU and that CARU would begin monitoring water quality in the area of the proposed site, but that Uruguay had failed to supply the information promised.
For its part, Uruguay noted that “Argentina [did] not deny obtaining from Uruguay a substantial amount of information through a variety of machinery and channels”, and that the measures taken by Uruguay in this regard were “fully supported by the CARU minutes”. It reiterated its contention that the 1975 Statute does not confer a “right of veto” upon the parties and argued that, in order to resolve any “difficulties of interpretation caused by an incomplete text”, it was necessary to turn to Article 31, paragraph 3, of the Vienna Convention on the Law of Treaties and, in particular, to consider “any subsequent practice from which important inferences can be drawn, making it possible to identify the agreement between the parties on how to interpret the treaty in question”. According to Uruguay, “the subsequent verbal agreement between the two countries of 2 March 2004 made by their Foreign Ministers” constituted a specific example of such subsequent practice excluding any interpretation which would recognize a right of veto. Uruguay further reiterated that the bilateral agreement of 2 March 2004, whose existence had been acknowledged by the President of the Argentine Republic, clearly authorized construction of the mills. In concluding its second round of oral observations, Uruguay expressly reiterated “its intention to comply in full with the 1975 Statute of the River Uruguay and its application”, and repeated “as a concrete expression of that intention . . . its offer of conducting continuous joint monitoring with the Argentine Republic” regarding the environmental consequences of the mills’ future operations.
The Court’s reasoning
The Court begins by observing that, in dealing with a request for provisional measures, it need not finally satisfy itself that it has jurisdiction on the merits of the case, but will not indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established.
The Court notes that Uruguay does not deny that the Court has jurisdiction under Article 60 of the 1975 Statute. It explains that Uruguay, however, asserts that such jurisdiction exists prima facie only with regard to those aspects of Argentina’s request that are directly related to the rights Argentina is entitled to claim under the 1975 Statute, and that Uruguay insists in this regard that rights claimed by Argentina relating to any alleged consequential economic and social impact of the mills, including any impact on tourism, are not covered by the 1975 Statute.
The Court, taking account of the fact that the Parties are in agreement that it has jurisdiction with regard to the rights to which Article 60 of the 1975 Statute applies, states that it does not need at this stage of the proceedings to address this further issue raised by Uruguay. It concludes, therefore, that it has prima facie jurisdiction under Article 60 of the 1975 Statute to deal with the merits, and thus may address the present request for provisional measures.
*
The Court then recalls that the object of its power to indicate provisional measures is to permit it to preserve the respective rights of the parties to a case “[p]ending the final decision” in the judicial proceedings, provided such measures are necessary to prevent irreparable prejudice to the rights in dispute. The Court further states that this power is to be exercised only if there is an urgent need to prevent irreparable prejudice to the rights that are the subject of the dispute before the Court has had an opportunity to render its decision.
The Court begins by addressing Argentina’s requests directed at the suspension of the authorization to construct the pulp mills and the suspension of the construction work itself. As regards the rights of a procedural nature invoked by Argentina, the Court leaves to the merits stage the question of whether Uruguay may have failed to adhere fully to the provisions of Chapter II of the 1975 Statute when it authorized the construction of the two mills. The Court adds that it is not at present convinced that, if it should later be shown that Uruguay had failed, prior to the present proceedings or at some later stage, fully to adhere to these provisions, any such violations would not be capable of being remedied at the merits stage of the proceedings.
The Court takes note of the interpretation of the 1975 Statute advanced by Argentina to the effect that it provides for a “no construction” obligation, that is to say that it stipulates that a project may only proceed if agreed to by both parties or that, lacking such agreement, it shall not proceed until the Court has ruled on the dispute. The Court, however, takes the view that it does not have to consider that issue for current purposes, since it is not at present convinced that, if it should later be shown that such is the correct interpretation of the 1975 Statute, any consequent violations of the Statute that Uruguay might be found to have committed would not be capable of being remedied at the merits stage of the proceedings.
As regard the rights of a substantive nature invoked by Argentina, the Court recognizes the concerns expressed by Argentina for the need to protect its natural environment and, in particular, the quality of the water of the River Uruguay. It recalls that it has had occasion in the past to stress the great significance it attaches to respect for the environment, in particular in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and in its Judgment in the case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia).
In the Court’s view, there is, however, nothing in the record to demonstrate that the actual decision by Uruguay to authorize the construction of the mills poses an imminent threat of irreparable damage to the aquatic environment of the River Uruguay or to the economic and social interests of the riparian inhabitants on the Argentine side of the river.
The Court observes that Argentina has not persuaded it that the construction of the mills presents a risk of irreparable damage to the environment; nor has it been demonstrated that the construction of the mills constitutes a present threat of irreparable economic and social damage. Furthermore, Argentina has not shown that the mere suspension of the construction of the mills, pending final judgment on the merits, would be capable of reversing or repairing the alleged economic and social consequences attributed by Argentina to the building works.
Moreover, Argentina has not at present provided evidence that suggests that any pollution resulting from the commissioning of the mills would be of a character to cause irreparable damage to the River Uruguay. The Court notes that it is a function of CARU to ensure the quality of water of the river by regulating and minimizing the level of pollution and that, in any event, the threat of any pollution is not imminent as the mills are not expected to be operational before August 2007 (Orion) and June 2008 (CMB).
The Court adds that it is not persuaded by the argument that the rights claimed by Argentina would no longer be capable of protection if the Court were to decide not to indicate at this stage of the proceeding the suspension of the authorization to construct the pulp mills and the suspension of the construction work itself.
The Court finds, in view of the foregoing, that the circumstances of the case are not such as to require the indication of a provisional measure ordering the suspension by Uruguay of the authorization to construct the pulp mills or the suspension of the actual construction works. The Court makes it clear, however, 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. It points out that their construction at the current site cannot be deemed to create a fait accompli because, as the Court has had occasion to emphasize, “if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled”.
The Court then turns to the remaining provisional measures sought by Argentina in its request. The Court points out that the present case highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development, and that it is in particular necessary to bear in mind the reliance of the Parties on the quality of the water of the River Uruguay for their livelihood and economic development; from this point of view, account must be taken of the need to safeguard the continued conservation of the river environment and of the rights of economic development of the riparian States.
The Court recalls in this connection that the 1975 Statute was established pursuant to the 1961 Montevideo Treaty defining the boundary on the River Uruguay between Argentina and Uruguay, and that it is not disputed between the Parties that the 1975 Statute establishes a joint machinery for the use and conservation of the river. The Court observes that the detailed provisions of the 1975 Statute, which require co-operation between the parties for activities affecting the river environment, created a comprehensive and progressive régime; of significance in this regard is the establishment of the CARU, a joint mechanism with regulatory, executive, administrative, technical and conciliatory functions, entrusted with the proper implementation of the rules contained in the 1975 Statute governing the management of the shared river resource, and that the procedural mechanism put in place under the 1975 Statute constitutes a very important part of that treaty régime.
The Court declares that the Parties are required to fulfil their obligations under international law and stresses the need 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. The Court further encourages both Parties to refrain from any actions which might render more difficult the resolution of the present dispute.
Having regard to all the above considerations and to the commitment affirmed before the Court by Uruguay during the oral proceedings to comply in full with the 1975 Statute of the River Uruguay, the Court does not consider that there are grounds for it to indicate the remaining provisional measures requested by Argentina. The Court concludes by recalling that its decision in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves, and that it leaves unaffected the right of Argentina and of Uruguay to submit arguments in respect of those questions. The decision also leaves unaffected the right of Argentina to submit in the future a fresh request for the indication of provisional measures under Article 75, paragraph 3, of the Rules of Court, based on new facts.
*
The full text of the Order’s final paragraph (para. 87) reads as follows:
“For these reasons,
The Court,
By fourteen votes to one,
Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
In favour: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Torres Bernárdez;
Against: Judge ad hoc Vinuesa.”
*
Judge Ranjeva appends a declaration to the Order of the Court; Judges Abraham and Bennouna append separate opinions to the Order of the Court; Judge ad hoc Vinuesa appends a dissenting opinion to the Order of the Court.
___________
Annex to Summary 2006/2
Declaration of Judge Ranjeva
Judge Ranjeva agrees with the Court’s decision to dismiss the request for provisional measures. However, he is not entirely satisfied with the approach of the Court, which focuses on urgency and the risk of irreparable prejudice in the event of the non-indication of such measures.
The parties’ obligation to comply with provisional measures pursuant to Article 94 of the United Nations Charter requires the Court to ensure that its decision cannot be viewed as a provisional judgment capable of prejudging future scrutiny of and findings on the merits. An examination of the effects of the measures is thus not, in itself, sufficient to prevent such a possibility; that examination must also be supported by an analysis of the very purpose of the measures requested.
It is for the Court to compare in limine the purpose of those measures with that sought through the principal proceedings and thus to dismiss direct, or in some cases indirect, requests that would, in reality, result in a provisional judgment. Such an approach will, first, help to clarify the relationship between the incidental proceedings and the principal proceedings so as to ensure that the Court, when ruling on the merits, is not bound by the provisional measures and, secondly, to limit the incidental proceedings to an examination of only the urgent parts of the request.
Separate opinion of Judge Abraham
While expressing his agreement with the dispositif of the Order, Judge Abraham regrets that the Court did not seize the opportunity presented by this case to clarify the question of principle as to the relationship between the merit, or prima facie merit, of the Applicant’s contentions in respect of the right it claims and the ordering of the urgent measures it seeks. According to many commentators, the Court, when ruling on a request for provisional measures, should refrain from any consideration at all of the merit of the parties’ arguments as to the existence and scope of the rights in dispute and should confine itself to ascertaining whether, assuming that the right claimed by the applicant is ultimately upheld in the final judgment, that right is threatened with irreparable injury in the meantime. Judge Abraham considers this view to be misguided. He points out that a provisional measure enjoining the respondent to act or to refrain from acting in a particular way necessarily interferes with the fundamental right of all sovereign States to act as they think best provided that their acts comply with international law. He deems it unthinkable that such an injunction could be issued without the Court having first satisfied itself that there is at least an appearance of merit in the applicant’s argument. In this regard, Judge Abraham draws a connection between the issue he addresses and the Court’s affirmation in its Judgment in LaGrand (Germany v. United States of America) (I.C.J. Reports 2001, p. 466) that measures indicated under Article 41 of the Statute are binding. Since an order by the Court obliges the State to which the indicated measure is directed to comply with it, the Court cannot prescribe such a measure without having conducted some minimum degree of review as to the existence of the rights claimed by the applicant, and without therefore taking a look at the merits of the dispute.
Judge Abraham is of the view that this review must necessarily be limited and closely resemble the standard of fumus boni juris so familiar to other international courts and many domestic legal systems. Regardless of the terminology employed, this amounts in substance to verifying that three conditions have been satisfied to enable the Court to order a measure to safeguard a right claimed by the applicant: there must be a plausible case for the existence of the right; there must be a reasonable argument that the respondent’s conduct is causing, or liable to cause, imminent injury to the right; and, finally, urgency in the specific circumstances must justify a protective measure to safeguard the right from irreparable injury.
Separate opinion of Judge Bennouna
Judge Bennouna regrets that the Court did not take the opportunity in the present case to clarify the relationship between the principal proceedings and the request for the indication of provisional measures.
The two Parties engaged in a full-scale debate before the Court as to the very existence of the right claimed by Argentina, whereby authorization to build the pulp mills could not be given, nor work on the sites begun, without the prior agreement of both States. If such a right existed, the indication of provisional measures, namely the withdrawal of that authorization and the suspension of building work, would effectively follow naturally from it.
The Court should have considered whether, in certain circumstances, it is not obliged to examine the prima facie existence of the right at issue - although it must not come to a final decision at that point - when doubt remains due to the possible complexity, ambiguity or silence of the texts concerned.
Judge Bennouna regrets that the Court did not enter into this issue and is of the opinion that there is therefore a link missing in the reasoning of the Order.
Nevertheless, since Judge Bennouna considers that the evidence presented to the Court was insufficient for it to determine prima facie whether the right claimed by Argentina existed, and since he is in agreement with the rest of the Court’s reasoning, he voted in favour of the Order.
Dissenting opinion of Judge ad hoc Vinuesa
Judge ad hoc Vinuesa disagrees with the Court’s finding that “the circumstances, as they present themselves to the Court, are not such as to require the exercise of its power” to indicate provisional measures.
He insists on the necessity to apply the joint mechanism provided for by the 1975 Statute for the optimum and rational utilization of the River Uruguay, and notes the present uncertainty of a risk of irreparable harm to the environment of the River Uruguay. In his opinion, the rights and duties under the 1975 Statute are an expression of the precautionary principle, which has been conventionally incorporated by Uruguay and Argentina. Taking note of the legal effects of Uruguay’s commitments before the Court to fully comply with the 1975 Statute, Judge ad hoc Vinuesa considers that the Court, in order to guarantee those commitments, should have indicated the temporary suspension of the construction of the mills until Uruguay notifies the Court of the fulfilment of its obligations under the 1975 Statute.
Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
Request for the indication of provisional measures
Summary of the Order of 13 July 2006
Application and request for the indication of provisional measures
The Court recalls that, by an Application filed in the Registry of the Court on 4 May 2006, the Argentine Republic (hereinafter “Argentina”) instituted proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”) for the alleged breach by Uruguay of obligations under the Statute of the River Uruguay, which was signed by Argentina and Uruguay on 26 February 1975 and entered into force on 18 September 1976 (hereinafter the “1975 Statute”). In its Application, Argentina claims that that breach arises from “the authorization, construction and future commissioning of two pulp mills on the River Uruguay”, with reference in particular “to the effects of such activities on the quality of the waters of the River Uruguay and on the areas affected by the river”. Argentina explains that the 1975 Statute was adopted in accordance with Article 7 of the Treaty defining the boundary on the River Uruguay between Argentina and Uruguay, signed at Montevideo on 7 April 1961 and which entered into force on 19 February 1966, which provided for the establishment of a joint régime for the use of the river.
Argentina bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on the first paragraph of Article 60 of the 1975 Statute, which provides as follows: “Any dispute concerning the interpretation or application of the [1961] Treaty and the [1975] Statute which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice”. Argentina claims that direct negotiations between the Parties have failed.
According to Argentina, the purpose of the 1975 Statute is “to establish the joint machinery necessary for the optimum and rational utilization” of that part of the River Uruguay which is shared by the two States and constitutes their common boundary. In addition to governing “activities such as conservation, utilization and development of other natural resources”, the 1975 Statute deals with “obligations of the Parties regarding the prevention of pollution and the liability resulting from damage inflicted as a result of pollution” and sets up an “Administrative Commission of the River Uruguay” (hereinafter “CARU”, in its Spanish acronym) whose functions include regulation and co-ordination. Argentina submits, in particular, that Articles 7 to 13 of the Statute provide for an obligatory procedure for prior notification and consultation through CARU for any party planning to carry out works liable to affect navigation, the régime of the river or the quality of its waters.
Argentina states that the Government of Uruguay, in October 2003, “unilaterally authorized the Spanish company ENCE to construct a pulp mill near the city of Fray Bentos”, a project known as “Celulosa de M’Bopicuá” (hereinafter “CMB”), and claims that this was done without complying with the above-mentioned notification and consultation procedure. It maintains that, despite its repeated protests concerning “the environmental impact of the proposed mill”, made both directly to the Government of Uruguay and to CARU, “the Uruguayan Government has persisted in its refusal to follow the procedures prescribed by the 1975 Statute”, and that Uruguay has in fact “aggravated the dispute” by authorizing the Finnish company Oy Metsä-Botnia AB (hereinafter “Botnia”) in February 2005 to construct a second pulp mill, the “Orion mill”, in the vicinity of the CMB plant. According to Argentina the “Uruguayan Government has further aggravated the dispute” by issuing authorization to Botnia in July 2005 “for the construction of a port for the exclusive use of the Orion mill without following the procedures prescribed by the 1975 Statute”.
Argentina concludes its Application by requesting the Court to
“adjudge and declare:
1. that Uruguay has breached the obligations incumbent upon it under the 1975 Statute and the other rules of international law to which that instrument refers, including but not limited to:
(a) the obligation to take all necessary measures for the optimum and rational utilization of the River Uruguay;
(b) the obligation of prior notification to CARU and to Argentina;
(c) the obligation to comply with the procedures prescribed in Chapter II of the 1975 Statute;
(d) the obligation to take all necessary measures to preserve the aquatic environment and prevent pollution and the obligation to protect biodiversity and fisheries, including the obligation to prepare a full and objective environmental impact study;
(e) the obligation to co-operate in the prevention of pollution and the protection of biodiversity and of fisheries; and
2. that, by its conduct, Uruguay has engaged its international responsibility to Argentina;
3. that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligations incumbent upon it; and
4. that Uruguay shall make full reparation for the injury caused by its breach of the obligations incumbent upon it.”
The Court recalls that, after filing its Application on 4 May 2006, Argentina also submitted a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and to Article 73 of the Rules of Court, in which it refers to the basis of jurisdiction of the Court invoked in its Application, and to the facts set out therein. At the conclusion of its request for the indication of provisional measures Argentina asks the Court to indicate that:
“(a) pending the Court’s final judgment, Uruguay shall:
(i) suspend forthwith all authorizations for the construction of the CMB and Orion mills;
(ii) take all necessary measures to suspend building work on the Orion mill; and
(iii) take all necessary measures to ensure that the suspension of building work on the CMB mill is prolonged beyond 28 June 2006;
(b) Uruguay shall co-operate in good faith with Argentina with a view to ensuring the optimum and rational utilization of the River Uruguay in order to protect and preserve the aquatic environment and to prevent its pollution;
(c) pending the Court’s final judgment, Uruguay shall refrain from taking any further unilateral action with respect to construction of the CMB and Orion mills which does not comply with the 1975 Statute and the rules of international law necessary for the latter’s interpretation and application;
(d) Uruguay shall refrain from any other action which might aggravate or extend the dispute which is the subject-matter of the present proceedings or render its settlement more difficult.”
Arguments of the Parties at the hearings
The Court observes that at the hearings, which took place on 8 and 9 June 2006, Argentina reiterated the arguments set out in its Application and its request for the indication of provisional measures, and claimed that the conditions for the indication of provisional measures had been fulfilled.
Argentina inter alia argued that its rights under the 1975 Statute arose in relation to two interwoven categories of obligations: “obligations of result that are of a substantive character, and obligations of conduct that have a procedural character”. With respect to substantive obligations, Argentina observed that Article 41 (a) of the 1975 Statute created for it at least two distinct rights: first, “the right that Uruguay shall prevent pollution” and, second, “the right to ensure that Uruguay prescribes measures ‘in accordance with applicable international standards’”, and Argentina claimed that Uruguay had respected neither of these obligations. Argentina further asserted that the substantive obligations under the Statute included “Uruguay’s obligation not to cause environmental pollution or consequential economic losses, for example to tourism”. It added that Articles 7 to 13 of the 1975 Statute and Article 60 thereof give it a number of procedural rights: “first, the right to be notified by Uruguay before works begin; secondly, to express views that are to be taken into account in the design of a proposed project; and, thirdly, to have th[e] Court resolve any differences before construction takes place”. Argentina emphasized that, according to Articles 9 and 12 of the 1975 Statute, Uruguay had the obligation “to ensure that no works are carried out until either Argentina has expressed no objections, or Argentina fails to respond to Uruguay’s notification, or the Court had indicated the positive conditions under which Uruguay may proceed to carry out works”. It submitted that none of these three conditions had yet been met, despite the fact that the above-mentioned procedures are mandatory and “admit of no exception”. Argentina further emphasized that, in its view, Article 9 of the 1975 Statute “established a ‘no construction’ obligation . . . of central importance to this phase of the proceedings”.
Argentina maintained that its rights, derived from both substantive and procedural obligations, were “under immediate threat of serious and irreparable prejudice”, contending that the site chosen for the two plants was “the worst imaginable in terms of protection of the river and the transboundary environment” and that environmental damage was, at the least, “a very serious probability” and would be irreparable. It submitted that economic and social damage would also result and would be impossible to assess, and further contended that the construction of the mills “[was] already having serious negative effects on tourism and other economic activities of the region”, including suspension of investment in tourism and a drastic decline in real estate transactions. Argentina asserted that there was no doubt that the condition of urgency necessary for the indication of provisional measures was satisfied, since “when there is a reasonable risk that the damage cited may occur before delivery of judgment on the merits, the requirement of urgency broadly merges with the condition [of the] existence of a serious risk of irreparable prejudice to the rights in issue”. Moreover, it observed that the construction of the mills was “underway and advancing at a rapid rate” and that the construction itself of the mills was causing “real and present damage” and noted that the mills “would patently be commissioned before [the Court] [would be] able to render judgment” since commissioning was scheduled for August 2007 for Orion and June 2008 for CMB. Argentina claimed that the suspension of both the authorizations for the construction of the plants and of the construction work itself was the only measure capable of preventing the choice of sites for the plants becoming a fait accompli and would avoid aggravating the economic and social damage caused by the construction of the plants.
The Court then considers the arguments put forward by Uruguay. It notes that Uruguay stated that it “had fully complied with the 1975 Statute of the River Uruguay throughout the period in which this case has developed” and argued that Argentina’s request was unfounded and that the requisite circumstances for a request for provisional measures were entirely lacking.
Uruguay stated that it did not dispute that Article 60 of the 1975 Statute constituted a prima facie basis for the jurisdiction of the Court to hear Argentina’s request for the indication of provisional measures, but that this provision establishes the Court’s jurisdiction only in relation to Argentina’s claims concerning the 1975 Statute and not for disputes falling outside the Court’s jurisdiction, such as those concerning “tourism, urban and rural property values, professional activities, unemployment levels, etc.” in Argentina, and those regarding other aspects of environmental protection in transboundary relations between the two States. It contended that Argentina’s request for the indication of provisional measures must be rejected because the breaches of the Statute of which Uruguay is accused “prima facie lack substance” and, in “applying both the highest and the most appropriate international standards of pollution control to these two mills”, Uruguay had “met its obligations under Article 41 of the Statute”. Uruguay further stated that it had “discharged the obligations imposed upon it by Articles 7 et seq. [of the 1975 Statute] in good faith”. In particular, it contended that those Articles did not give either party a “right of veto” over the implementation by the other party of industrial development projects, but were confined to imposing on the parties an obligation to engage in a full and good-faith exchange of information under the procedures provided by the Statute or agreed between them. Uruguay noted that it had complied fully with that obligation by “inform[ing] Argentina - through CARU or through other channels - of the existence of th[e] [pulp mill] projects, describing them in detail with an impressive amount of information”, and by “suppl[ying] all the necessary technical data to make Argentina aware of the absence of any risk in regard to their potential environmental impact on the River Uruguay”. It further asserted that it was the first time “in the 31 years since the [1975] Statute came into being” that Argentina had claimed it had “a procedural right under the Statute, not only to receive notice and information and to engage in good faith negotiations, but to block Uruguay from initiating projects during [the] procedural stages and during any litigation that might ensue”. Uruguay moreover stated that the dispute between Uruguay and Argentina over the pulp mills had in reality been settled by an agreement entered into on 2 March 2004 between the Uruguayan Minister for Foreign Affairs and his Argentine counterpart, by which the two Ministers had agreed, first, that the CMB mill could be built according to the Uruguayan plan, secondly, that Uruguay would provide Argentina with information regarding its specifications and operation and, thirdly, that CARU would monitor the quality of the river water once the mill became operational in order to ensure compliance with the Statute. According to Uruguay, the existence of this agreement had been confirmed a number of times, inter alia, by the Argentine Minister for Foreign Affairs and by the Argentine President, and its terms had been extended so as to apply also to the projected Orion mill.
Moreover, according to Uruguay there is no current or imminent threat to any right of Argentina, so that the conditions of risk of irreparable harm and urgency are not fulfilled. In support of its position, Uruguay inter alia explained that the environmental impact assessments so far undertaken, as well as those to come, and the regulatory controls and strict licensing conditions imposed by Uruguayan law for the construction and operation of the mills, guaranteed that the latter would not cause any harm to the River Uruguay or to Argentina, and that they would abide by the strict requirements imposed by “the latest European Union 1999 International Pollution Prevention and Control (IPPC) recommendations, with which compliance is required by all pulp plants in Europe by 2007”. Uruguay pointed out that the mills would not be operational before August 2007 and June 2008 respectively, and that a number of further conditions would have to be met before that stage was reached. Uruguay concluded that, even if it were to be considered that the operation of the mills might lead to “the contamination of the river”, the gravity of the “alleged peril to Argentina” was not “sufficiently certain or immediate as to satisfy the Court’s requirement that it be ‘imminent’ or urgent”.
Lastly, Uruguay argued that suspending constructions of the mills would cause such economic loss to the companies involved and their shareholders that it would be highly likely to jeopardize the entire two projects. Uruguay contended that the provisional measures sought by Argentina would therefore irreparably prejudice its sovereign right to implement sustainable economic development projects in its own territory. It pointed out in this connection that the pulp mill projects represented the largest foreign investment in Uruguay’s history, that construction in itself would create many thousands of new jobs and that, once in service, the mills would have “an economic impact of more than $350 million per year”, representing “an increase of fully 2 per cent in Uruguay’s gross domestic product”.
In its second round of oral observations Argentina inter alia maintained that, according to Article 42 of the 1975 Statute and established international principles, the 1975 Statute covered not only the pollution of the river, as claimed by Uruguay, but also pollution of all kinds resulting from the use of the river as well as the economic and social consequences of the mills. Argentina strongly disputed Uruguay’s assertion that it had prima facie fulfilled its obligations under the 1975 Statute; it observed that the projects had never been formerly notified to CARU by Uruguay, and that Uruguay had not provided adequate information regarding the pulp mills. Argentina further asserted that there was no bilateral agreement of 2 March 2004 to the effect that construction of the CMB mill could proceed as planned. It contended that the arrangement reached at the meeting of that date between the Ministers for Foreign Affairs of the two States was simply that Uruguay would transmit all the information on CMB to CARU and that CARU would begin monitoring water quality in the area of the proposed site, but that Uruguay had failed to supply the information promised.
For its part, Uruguay noted that “Argentina [did] not deny obtaining from Uruguay a substantial amount of information through a variety of machinery and channels”, and that the measures taken by Uruguay in this regard were “fully supported by the CARU minutes”. It reiterated its contention that the 1975 Statute does not confer a “right of veto” upon the parties and argued that, in order to resolve any “difficulties of interpretation caused by an incomplete text”, it was necessary to turn to Article 31, paragraph 3, of the Vienna Convention on the Law of Treaties and, in particular, to consider “any subsequent practice from which important inferences can be drawn, making it possible to identify the agreement between the parties on how to interpret the treaty in question”. According to Uruguay, “the subsequent verbal agreement between the two countries of 2 March 2004 made by their Foreign Ministers” constituted a specific example of such subsequent practice excluding any interpretation which would recognize a right of veto. Uruguay further reiterated that the bilateral agreement of 2 March 2004, whose existence had been acknowledged by the President of the Argentine Republic, clearly authorized construction of the mills. In concluding its second round of oral observations, Uruguay expressly reiterated “its intention to comply in full with the 1975 Statute of the River Uruguay and its application”, and repeated “as a concrete expression of that intention . . . its offer of conducting continuous joint monitoring with the Argentine Republic” regarding the environmental consequences of the mills’ future operations.
The Court’s reasoning
The Court begins by observing that, in dealing with a request for provisional measures, it need not finally satisfy itself that it has jurisdiction on the merits of the case, but will not indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established.
The Court notes that Uruguay does not deny that the Court has jurisdiction under Article 60 of the 1975 Statute. It explains that Uruguay, however, asserts that such jurisdiction exists prima facie only with regard to those aspects of Argentina’s request that are directly related to the rights Argentina is entitled to claim under the 1975 Statute, and that Uruguay insists in this regard that rights claimed by Argentina relating to any alleged consequential economic and social impact of the mills, including any impact on tourism, are not covered by the 1975 Statute.
The Court, taking account of the fact that the Parties are in agreement that it has jurisdiction with regard to the rights to which Article 60 of the 1975 Statute applies, states that it does not need at this stage of the proceedings to address this further issue raised by Uruguay. It concludes, therefore, that it has prima facie jurisdiction under Article 60 of the 1975 Statute to deal with the merits, and thus may address the present request for provisional measures.
*
The Court then recalls that the object of its power to indicate provisional measures is to permit it to preserve the respective rights of the parties to a case “[p]ending the final decision” in the judicial proceedings, provided such measures are necessary to prevent irreparable prejudice to the rights in dispute. The Court further states that this power is to be exercised only if there is an urgent need to prevent irreparable prejudice to the rights that are the subject of the dispute before the Court has had an opportunity to render its decision.
The Court begins by addressing Argentina’s requests directed at the suspension of the authorization to construct the pulp mills and the suspension of the construction work itself. As regards the rights of a procedural nature invoked by Argentina, the Court leaves to the merits stage the question of whether Uruguay may have failed to adhere fully to the provisions of Chapter II of the 1975 Statute when it authorized the construction of the two mills. The Court adds that it is not at present convinced that, if it should later be shown that Uruguay had failed, prior to the present proceedings or at some later stage, fully to adhere to these provisions, any such violations would not be capable of being remedied at the merits stage of the proceedings.
The Court takes note of the interpretation of the 1975 Statute advanced by Argentina to the effect that it provides for a “no construction” obligation, that is to say that it stipulates that a project may only proceed if agreed to by both parties or that, lacking such agreement, it shall not proceed until the Court has ruled on the dispute. The Court, however, takes the view that it does not have to consider that issue for current purposes, since it is not at present convinced that, if it should later be shown that such is the correct interpretation of the 1975 Statute, any consequent violations of the Statute that Uruguay might be found to have committed would not be capable of being remedied at the merits stage of the proceedings.
As regard the rights of a substantive nature invoked by Argentina, the Court recognizes the concerns expressed by Argentina for the need to protect its natural environment and, in particular, the quality of the water of the River Uruguay. It recalls that it has had occasion in the past to stress the great significance it attaches to respect for the environment, in particular in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and in its Judgment in the case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia).
In the Court’s view, there is, however, nothing in the record to demonstrate that the actual decision by Uruguay to authorize the construction of the mills poses an imminent threat of irreparable damage to the aquatic environment of the River Uruguay or to the economic and social interests of the riparian inhabitants on the Argentine side of the river.
The Court observes that Argentina has not persuaded it that the construction of the mills presents a risk of irreparable damage to the environment; nor has it been demonstrated that the construction of the mills constitutes a present threat of irreparable economic and social damage. Furthermore, Argentina has not shown that the mere suspension of the construction of the mills, pending final judgment on the merits, would be capable of reversing or repairing the alleged economic and social consequences attributed by Argentina to the building works.
Moreover, Argentina has not at present provided evidence that suggests that any pollution resulting from the commissioning of the mills would be of a character to cause irreparable damage to the River Uruguay. The Court notes that it is a function of CARU to ensure the quality of water of the river by regulating and minimizing the level of pollution and that, in any event, the threat of any pollution is not imminent as the mills are not expected to be operational before August 2007 (Orion) and June 2008 (CMB).
The Court adds that it is not persuaded by the argument that the rights claimed by Argentina would no longer be capable of protection if the Court were to decide not to indicate at this stage of the proceeding the suspension of the authorization to construct the pulp mills and the suspension of the construction work itself.
The Court finds, in view of the foregoing, that the circumstances of the case are not such as to require the indication of a provisional measure ordering the suspension by Uruguay of the authorization to construct the pulp mills or the suspension of the actual construction works. The Court makes it clear, however, 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. It points out that their construction at the current site cannot be deemed to create a fait accompli because, as the Court has had occasion to emphasize, “if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled”.
The Court then turns to the remaining provisional measures sought by Argentina in its request. The Court points out that the present case highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development, and that it is in particular necessary to bear in mind the reliance of the Parties on the quality of the water of the River Uruguay for their livelihood and economic development; from this point of view, account must be taken of the need to safeguard the continued conservation of the river environment and of the rights of economic development of the riparian States.
The Court recalls in this connection that the 1975 Statute was established pursuant to the 1961 Montevideo Treaty defining the boundary on the River Uruguay between Argentina and Uruguay, and that it is not disputed between the Parties that the 1975 Statute establishes a joint machinery for the use and conservation of the river. The Court observes that the detailed provisions of the 1975 Statute, which require co-operation between the parties for activities affecting the river environment, created a comprehensive and progressive régime; of significance in this regard is the establishment of the CARU, a joint mechanism with regulatory, executive, administrative, technical and conciliatory functions, entrusted with the proper implementation of the rules contained in the 1975 Statute governing the management of the shared river resource, and that the procedural mechanism put in place under the 1975 Statute constitutes a very important part of that treaty régime.
The Court declares that the Parties are required to fulfil their obligations under international law and stresses the need 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. The Court further encourages both Parties to refrain from any actions which might render more difficult the resolution of the present dispute.
Having regard to all the above considerations and to the commitment affirmed before the Court by Uruguay during the oral proceedings to comply in full with the 1975 Statute of the River Uruguay, the Court does not consider that there are grounds for it to indicate the remaining provisional measures requested by Argentina. The Court concludes by recalling that its decision in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves, and that it leaves unaffected the right of Argentina and of Uruguay to submit arguments in respect of those questions. The decision also leaves unaffected the right of Argentina to submit in the future a fresh request for the indication of provisional measures under Article 75, paragraph 3, of the Rules of Court, based on new facts.
*
The full text of the Order’s final paragraph (para. 87) reads as follows:
“For these reasons,
The Court,
By fourteen votes to one,
Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
In favour: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Torres Bernárdez;
Against: Judge ad hoc Vinuesa.”
*
Judge Ranjeva appends a declaration to the Order of the Court; Judges Abraham and Bennouna append separate opinions to the Order of the Court; Judge ad hoc Vinuesa appends a dissenting opinion to the Order of the Court.
___________
Annex to Summary 2006/2
Declaration of Judge Ranjeva
Judge Ranjeva agrees with the Court’s decision to dismiss the request for provisional measures. However, he is not entirely satisfied with the approach of the Court, which focuses on urgency and the risk of irreparable prejudice in the event of the non-indication of such measures.
The parties’ obligation to comply with provisional measures pursuant to Article 94 of the United Nations Charter requires the Court to ensure that its decision cannot be viewed as a provisional judgment capable of prejudging future scrutiny of and findings on the merits. An examination of the effects of the measures is thus not, in itself, sufficient to prevent such a possibility; that examination must also be supported by an analysis of the very purpose of the measures requested.
It is for the Court to compare in limine the purpose of those measures with that sought through the principal proceedings and thus to dismiss direct, or in some cases indirect, requests that would, in reality, result in a provisional judgment. Such an approach will, first, help to clarify the relationship between the incidental proceedings and the principal proceedings so as to ensure that the Court, when ruling on the merits, is not bound by the provisional measures and, secondly, to limit the incidental proceedings to an examination of only the urgent parts of the request.
Separate opinion of Judge Abraham
While expressing his agreement with the dispositif of the Order, Judge Abraham regrets that the Court did not seize the opportunity presented by this case to clarify the question of principle as to the relationship between the merit, or prima facie merit, of the Applicant’s contentions in respect of the right it claims and the ordering of the urgent measures it seeks. According to many commentators, the Court, when ruling on a request for provisional measures, should refrain from any consideration at all of the merit of the parties’ arguments as to the existence and scope of the rights in dispute and should confine itself to ascertaining whether, assuming that the right claimed by the applicant is ultimately upheld in the final judgment, that right is threatened with irreparable injury in the meantime. Judge Abraham considers this view to be misguided. He points out that a provisional measure enjoining the respondent to act or to refrain from acting in a particular way necessarily interferes with the fundamental right of all sovereign States to act as they think best provided that their acts comply with international law. He deems it unthinkable that such an injunction could be issued without the Court having first satisfied itself that there is at least an appearance of merit in the applicant’s argument. In this regard, Judge Abraham draws a connection between the issue he addresses and the Court’s affirmation in its Judgment in LaGrand (Germany v. United States of America) (I.C.J. Reports 2001, p. 466) that measures indicated under Article 41 of the Statute are binding. Since an order by the Court obliges the State to which the indicated measure is directed to comply with it, the Court cannot prescribe such a measure without having conducted some minimum degree of review as to the existence of the rights claimed by the applicant, and without therefore taking a look at the merits of the dispute.
Judge Abraham is of the view that this review must necessarily be limited and closely resemble the standard of fumus boni juris so familiar to other international courts and many domestic legal systems. Regardless of the terminology employed, this amounts in substance to verifying that three conditions have been satisfied to enable the Court to order a measure to safeguard a right claimed by the applicant: there must be a plausible case for the existence of the right; there must be a reasonable argument that the respondent’s conduct is causing, or liable to cause, imminent injury to the right; and, finally, urgency in the specific circumstances must justify a protective measure to safeguard the right from irreparable injury.
Separate opinion of Judge Bennouna
Judge Bennouna regrets that the Court did not take the opportunity in the present case to clarify the relationship between the principal proceedings and the request for the indication of provisional measures.
The two Parties engaged in a full-scale debate before the Court as to the very existence of the right claimed by Argentina, whereby authorization to build the pulp mills could not be given, nor work on the sites begun, without the prior agreement of both States. If such a right existed, the indication of provisional measures, namely the withdrawal of that authorization and the suspension of building work, would effectively follow naturally from it.
The Court should have considered whether, in certain circumstances, it is not obliged to examine the prima facie existence of the right at issue - although it must not come to a final decision at that point - when doubt remains due to the possible complexity, ambiguity or silence of the texts concerned.
Judge Bennouna regrets that the Court did not enter into this issue and is of the opinion that there is therefore a link missing in the reasoning of the Order.
Nevertheless, since Judge Bennouna considers that the evidence presented to the Court was insufficient for it to determine prima facie whether the right claimed by Argentina existed, and since he is in agreement with the rest of the Court’s reasoning, he voted in favour of the Order.
Dissenting opinion of Judge ad hoc Vinuesa
Judge ad hoc Vinuesa disagrees with the Court’s finding that “the circumstances, as they present themselves to the Court, are not such as to require the exercise of its power” to indicate provisional measures.
He insists on the necessity to apply the joint mechanism provided for by the 1975 Statute for the optimum and rational utilization of the River Uruguay, and notes the present uncertainty of a risk of irreparable harm to the environment of the River Uruguay. In his opinion, the rights and duties under the 1975 Statute are an expression of the precautionary principle, which has been conventionally incorporated by Uruguay and Argentina. Taking note of the legal effects of Uruguay’s commitments before the Court to fully comply with the 1975 Statute, Judge ad hoc Vinuesa considers that the Court, in order to guarantee those commitments, should have indicated the temporary suspension of the construction of the mills until Uruguay notifies the Court of the fulfilment of its obligations under the 1975 Statute.
BJL Súper Moderador
Creado: 27/01/07
SUMARIO FALLO 23 DE ENERO 2007
Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
Request for the indication of provisional measures
Summary of the Order of 23 January 2007
Application and requests for the indication of provisional measures
The Court recalls that, by an Application filed in the Registry of the Court on 4 May 2006, the Argentine Republic (hereinafter “Argentina”) instituted proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”) for the alleged breach by Uruguay of obligations under the Statute of the River Uruguay, which was signed by Argentina and Uruguay on 26 February 1975 and entered into force on 18 September 1976 (hereinafter the “1975 Statute”). In its Application, Argentina claims that that breach arises from “the authorization, construction and future commissioning of two pulp mills on the River Uruguay”, with reference in particular “to the effects of such activities on the quality of the waters of the River Uruguay and on the areas affected by the river”.
Argentina bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on the first paragraph of Article 60 of the 1975 Statute, which provides inter alia that any dispute concerning the interpretation or application of the 1975 Statute “which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice”.
On the basis of the statement of facts and the legal grounds set out in the Application, Argentina 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 [the Spanish acronym of the Administrative Commission of the River Uruguay] and to Argentina;
(c) the obligation to comply with the procedures prescribed in Chapter II of the 1975 Statute;
(d) the obligation to take all necessary measures to preserve the aquatic environment and prevent pollution and the obligation to protect biodiversity and fisheries, including the obligation to prepare a full and objective environmental impact study;
(e) the obligation to co-operate in the prevention of pollution and the protection of biodiversity and of fisheries; and
2. that, by its conduct, Uruguay has engaged its international responsibility to Argentina;
3. that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligations incumbent upon it; and
4. that Uruguay shall make full reparation for the injury caused by its breach of the obligations incumbent upon it.”
The Court recalls that, immediately after filing its Application on 4 May 2006, Argentina submitted a request for the indication of provisional measures requiring Uruguay: to suspend the authorizations for the construction of the mills and to suspend building work on them pending the Court’s final decision; and to co-operate with Argentina in order to protect and preserve the aquatic environment of the River Uruguay, to refrain from taking any further unilateral action with respect to construction of the two mills which does not comply with the 1975 Statute and also to refrain from any other action which might aggravate the dispute or render its settlement more difficult. By Order dated 13 July 2006, the Court found “that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”. By Order of the same date, the Court fixed time-limits for the filing of the initial written pleadings.
On 29 November 2006, Uruguay, referring to the pending case and citing Article 41 of the Statute of the Court and Article 73 of the Rules of Court, in turn submitted a request for the indication of provisional measures, asserting that they were “urgently needed to protect the rights of Uruguay that are at issue in these proceedings from imminent and irreparable injury, and to prevent the aggravation of the present dispute”. Uruguay stated inter alia that, since 20 November 2006, “[o]rganized groups of Argentine citizens have blockaded a vital international bridge over the Uruguay River, shutting off commercial and tourist travel from Argentina to Uruguay” and that those groups planned to extend the blockades to the river itself. Uruguay claimed to have suffered significant economic injury from these actions, against which Argentina has failed, according to Uruguay, to take any steps. It alleged that the stated purpose of the actions was to force it to accede to Argentina’s demand that it permanently end construction of the Botnia pulp mill, the subject-matter of the dispute, and prevent the plant from ever coming into operation.
At the conclusion of its request Uruguay asked the Court to indicate the following measures:
“While awaiting the final judgment of the Court, Argentina
(i) shall take all reasonable and appropriate steps at its disposal to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States;
(ii) shall abstain from any measure that might aggravate, extend or make more difficult the settlement of this dispute; and
(iii) shall abstain from any other measure that might prejudice the rights of Uruguay in dispute before the Court.”
Jurisdiction of the Court
The Court notes that at the hearings on 18 and 19 December 2006 Argentina challenged the jurisdiction of the Court to indicate the provisional measures sought by Uruguay on the ground, notably, that the request had no link with the Statute of the River Uruguay or with the Application instituting proceedings. In Argentina’s view, the real purpose of Uruguay’s request was to obtain the removal of the roadblocks and none of the rights potentially affected by the roadblocks, that is the right to freedom of transport and to freedom of commerce between the two States, were rights governed by the Statute of the River Uruguay. Argentina argued that those rights were governed by the Treaty of Asunción, which established the Southern Common Market (hereinafter “Mercosur”), pointing out that Uruguay had already seised a Mercosur ad hoc Tribunal in relation to the roadblocks and that that tribunal had handed down its decision on the case on 6 September last, which decision was final and binding and constituted res judicata with respect to the Parties. Argentina contended that Mercosur’s dispute settlement system ruled out the possibility of applying to any other forum.
The Court next sets out Uruguay’s arguments. Uruguay denied that its request for the indication of provisional measures sought to obtain from the Court condemnation of the unlawfulness of the blocking of international roads and bridges connecting Argentina to Uruguay under general international law or under the rules of the Treaty of Asunción. According to Uruguay, the roadblocks constituted unlawful acts violating and threatening irreparable harm to the very rights which it was defending before the Court. Uruguay maintained that the blocking of international roads and bridges was a matter directly, intimately and indissociably related to the subject-matter of the case before the Court and that the Court unquestionably had jurisdiction to entertain it. Uruguay further denied that the measures it had taken within the framework of the Mercosur institutions had any bearing whatsoever on the Court’s jurisdiction, given that the decision of the ad hoc Tribunal of 6 September 2006 concerned different roadblocks ¾ established at another time and with a different purpose ¾ to those referred to in its request for provisional measures and that it had not instituted any further proceedings within Mercosur’s dispute settlement mechanisms with respect to the existing roadblocks.
The Court first points out that, in dealing with a request for provisional measures, it need not finally satisfy itself that it has jurisdiction on the merits of the case but that it will not indicate such measures unless there is, prima facie, a basis on which its jurisdiction might be established. It observes that this is so whether the request is made by the applicant or by the respondent in the proceedings on the merits.
After noting that it already concluded, in its Order of 13 July 2006, that it had prima facie jurisdiction under Article 60 of the 1975 Statute to deal with the merits of the case, the Court examines the link between the rights sought to be protected through the provisional measures and the subject of the proceedings before the Court on the merits of the case. It observes that Article 41 of the Court’s Statute authorizes it to indicate “any provisional measures which ought to be taken to preserve the respective rights of either party” and states that the rights of the respondent (Uruguay) are not dependent solely upon the way in which the applicant (Argentina) formulates its application.
The Court finds that any right Uruguay may have to continue the construction and to begin the commissioning of the Botnia plant in conformity with the provisions of the 1975 Statute, pending a final decision by the Court, effectively constitutes a claimed right in the present case, which may in principle be protected by the indication of provisional measures. It adds that Uruguay’s claimed right to have the merits of the present case resolved by the Court under Article 60 of the 1975 Statute also has a connection with the subject of the proceedings on the merits initiated by Argentina and may in principle be protected by the indication of provisional measures.
The Court concludes that the rights which Uruguay invokes in, and seeks to protect by, its request have a sufficient connection with the merits of the case and that Article 60 of the 1975 Statute may thus be applicable to those rights. The Court points out that the rights invoked by Uruguay before the Mercosur ad hoc Tribunal are different from those that it seeks to have protected in the present case and that it follows that the Court has jurisdiction to address Uruguay’s request for provisional measures.
Provisional measures: reasoning of the Court
The Court observes that its power to indicate provisional measures has as its object to preserve the respective rights of each party to the proceedings “[p]ending the final decision”, providing that such measures are justified to prevent irreparable prejudice to the rights which are the subject of the dispute. It adds that this power can be exercised only if there is an urgent necessity to prevent irreparable prejudice to such rights, before the Court has given its final decision.
In respect of the first provisional measure sought by Uruguay, namely that Argentina “shall take all reasonable and appropriate steps at its disposal to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States”, the Court notes that, according to Uruguay: roadblocks have been installed on all of the bridges linking Uruguay to Argentina; the Fray Bentos bridge, which normally carries 91 per cent of Uruguay’s exports to Argentina, has been subject to a complete and uninterrupted blockade; and the two other bridges linking the two countries “have at times been closed” and that there was a real risk of them being blocked permanently. Again according to Uruguay, these roadblocks have an extremely serious impact on Uruguay’s economy and on its tourist industry and are moreover aimed at compelling Uruguay to halt construction of the Botnia plant, which would be lost in its entirety, thereby leading to irreparable prejudice. Uruguay further claimed that, in encouraging the blockades, Argentina had initiated a trend intended to result in irreparable harm to the very substance of the rights in dispute and that, accordingly, “it is the blockades that present the urgent threat, not . . . [the] impact they may eventually have on the Botnia plant”. The Court notes that Argentina disputed the version of the facts presented by Uruguay and argued that the issue was the blockade of roads in Argentine territory and not of an international bridge. In its view, the roadblocks were “sporadic, partial and geographically localized” and moreover had no impact on either tourism or trade between the two countries, nor on the construction of the pulp mills, which has continued. Argentina stated in this respect that the Orion mill was “at 70 per cent of the planned construction”. It added that it had never encouraged the roadblocks, nor provided the blockaders with any support, and submitted that the partial blocking of roads in Argentina was not capable of causing irreparable prejudice to the rights which will be the subject of the Court’s decision on the merits, and that there was no urgency to the provisional measures sought by Uruguay.
Referring to the arguments of the Parties, the Court expresses its view that, notwithstanding the blockades, the construction of the Botnia plant has progressed significantly since the summer of 2006 with two further authorizations having been granted and that it is now well advanced and thus continuing. It states that it is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay claims in the present case from the 1975 Statute as such and adds that it has not been shown that, were there such a risk, it would be imminent. The Court consequently finds that the circumstances of the case are not such as to require the indication of the first provisional measure requested by Uruguay, to “prevent or end the interruption of transit” between the two States and inter alia “the blockading of [the] bridges and roads” linking them.
The Court next turns to the other two provisional measures sought by Uruguay, namely that Argentina “shall abstain from any measure that might aggravate, extend or make more difficult the settlement of this dispute; and shall abstain from any other measure that might prejudice the rights of Uruguay in dispute before the Court”. The Court refers to Uruguay’s argument that an order can be made to prevent aggravation of the dispute even where the Court has found that there is no threat of irreparable damage to the rights in dispute and notes that, according to Uruguay, the blockade of the bridges over the River Uruguay amounts to an aggravation of the dispute which threatens the due administration of justice. Uruguay further argued that, given Argentina’s conduct aimed at compelling Uruguay to submit, without waiting for the judgment on the merits, to the claims asserted by Argentina before the Court, the Court should order Argentina to abstain from any other measure that might prejudice Uruguay’s rights in dispute. The Court observes that, in Argentina’s view, there was no risk of aggravation or extension of the dispute and nothing in its conduct infringed Uruguay’s procedural rights or endangered Uruguay’s rights to continue the proceedings, to deploy all its grounds of defence and to obtain from the Court a decision with binding force. Argentina added that, in the absence of any link to the subject-matter of the proceedings, should the Court decide not to indicate the first provisional measure, the second and third provisional measures requested by Uruguay could not be indicated independently from the first.
The Court points out that it has on several occasions, in past cases of which it cites examples, indicated provisional measures directing the parties not to take any actions which could aggravate or extend the dispute or render more difficult its settlement. It notes that in those cases provisional measures other than those directing the parties not to take actions to aggravate or extend the dispute or to render more difficult its settlement were also indicated. In this case the Court does not find that there is at present an imminent risk of irreparable prejudice to the rights of Uruguay in dispute before it, caused by the blockades of the bridges and roads linking the two States. It therefore considers that the blockades themselves do not justify the indication of the second provisional measure requested by Uruguay, in the absence of the conditions for the Court to indicate the first provisional measure. For the aforementioned reasons, the Court cannot indicate the third provisional measure requested by Uruguay either.
Having rejected Uruguay’s request for the indication of provisional measures in its entirety, the Court reiterates its call to the Parties made in its Order of 13 July 2006 “to fulfil their obligations under international law”, “to implement in good faith the consultation and co-operation procedures provided for by the 1975 Statute, with CARU [Administrative Commission of the River Uruguay] constituting the envisaged forum in this regard”, and “to refrain from any actions which might render more difficult the resolution of the present dispute”. It points out that its decision in no way prejudges the question of its jurisdiction to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves and that the decision leaves unaffected the right of Argentina and of Uruguay to submit arguments in respect of those questions. The decision also leaves unaffected the right of Uruguay to submit in the future a fresh request for the indication of provisional measures under Article 75, paragraph 3, of the Rules of Court, based on new facts.
*
The full text of the Order’s final paragraph (para. 56) reads as follows:
“For these reasons,
The Court,
By fourteen votes to one,
Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
In favour: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Vinuesa;
Against: Judge ad hoc Torres Bernárdez.”
*
Judges Koroma and Buergenthal have appended declarations to the Order. Judge ad hoc Torres Bernárdez has appended a dissenting opinion to the Order.
___________
Annex to Summary 2007/1
Declaration of Judge Koroma
In a declaration attached to the Order Judge Koroma has pointed out that the decision taken by the Court in this case was judicious. That while the Court found that it had prima facie jurisdiction, but, because no imminent threat of irreparable harm or prejudice to Uruguay’s rights was demonstrated, it could not uphold the request in its entirety, Judge Koroma considered it appropriate to call on the Parties not to take any action that might render more difficult the resolution of the dispute. He believes that this exhortation not only falls within the purview of Article 41 of the Statute ¾ the preservation of the respective rights of the Parties ¾ but should encourage them to solve their dispute peacefully. In his view, the judicial function is not limited to settling disputes and fostering the development of the law but includes encouraging parties in dispute to find a peaceful solution to their dispute on the basis of law rather than otherwise.
Declaration of Judge Buergenthal
Although agreeing with the Court’s decision rejecting Uruguay’s request for provisional measures, Judge Buergenthal argues in his Declaration that the Court has the power to grant two distinct types of provisional measures. One type is based on a finding that there is an urgent need for such measures because of the risk of irreparable prejudice or harm to the rights that are the subject of the dispute over which the Court has prima facie jurisdiction. The other type of provisional measures may be indicated, according to Judge Buergenthal, in order to prevent the aggravation or extension of the dispute by extrajudicial coercive means unrelated to the subjectmatter of the dispute. He submits that by focusing only on the first type, the Court missed an opportunity to thoroughly consider the full scope of its power under Article 41 of its Statute in circumstances involving allegations of extrajudicial coercive measures.
Judge Buergenthal concludes that, despite the regrettable economic harm caused Uruguay by the blockades of the bridges, these actions appear not to have seriously undermined the ability of Uruguay to effectively protect its rights generally in the pending judicial proceedings.
Dissenting opinion of Judge ad hoc Torres Bernárdez
1. In his dissenting opinion Judge Torres Bernárdez first examines the question of the Court’s prima facie jurisdiction and the admissibility of Uruguay’s request for the indication of provisional measures and then the question whether or not there is a risk of irreparable prejudice to the disputed rights claimed by Uruguay and an urgent need to remedy it.
2. In respect of the first question, Judge Torres Bernárdez concludes that Argentina’s contentions as to lack of jurisdiction and inadmissibility are not supported by either the facts of the case or the applicable law. Thus, Judge Torres Bernárdez expresses his agreement with the Court’s rejection of the objections submitted by Argentina (para. 30 of the Order). He also sees in this rejection confirmation that the rights invoked by Uruguay as a party to the 1975 Statute of the River Uruguay, for which Uruguay seeks protection through the indication of provisional measures, are not, prima facie, non-existent or alien to the dispute. They are fully plausible rights in dispute and are sufficiently important and solid to merit possible protective measures in response to a party’s conduct threatening to infringe them. Thus, Uruguay’s claim satisfies the “fumus boni juris” or “fumus non mali juris” test.
3. In respect of the question whether or not there is a risk of irreparable prejudice to the disputed rights claimed by Uruguay and an urgent need to remedy it, Judge Torres Bernárdez begins by recalling that, under Article 41 of the Statute of the Court, the indication of provisional measures presupposes that “irreparable prejudice” shall not be caused in the course of the judicial proceedings to rights which are the subject of dispute and that the Court must therefore be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent (see, for example, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34). But it is obviously unnecessary, where provisional measures are to be indicated, for the “prejudice” itself already to have occurred. It is enough for there to be a serious “risk” of irreparable prejudice to the rights at issue. This explains why it is well-established in the jurisprudence of the Court that provisional measures are aimed at responding not to “irreparable prejudice” per se, but to a “risk of irreparable prejudice” to the rights in dispute. And it is indeed the “risk” and the “urgency” which must be shown.
4. Judge Torres Bernárdez points out that, in addressing the issue of the existence of the risk and its imminence, he will rely essentially on factual elements. He notes that the term “prejudice” as used in the jurisprudence of the Court has a broader, more elastic meaning than economic injury or loss alone. As for the “irreparability” of the prejudice, he concurs that the main test employed in the jurisprudence refers to preserving the integrity and effectiveness of the judgment on the merits.
5. The fact that in the present case the rights claimed by Uruguay, targeted by the “asambleistas” of Gualeguaychu and its environs, are “rights in dispute” before the Court in no way changes Argentina’s obligations as territorial sovereign. Further, as a Party to the case, Argentina must not forestall the Court’s final decision on the “rights in dispute” in the case which it itself referred to the Court. Moreover, the situation has deteriorated since late November 2006. It should have prompted the exercise by the Court of its power to indicate such measures to preserve Uruguay’s rights at issue and to check the marked proclivity towards aggravating and extending the dispute.
6. In the opinion of Judge Torres Bernárdez, the circumstances of the present case require the indication of very specific provisional measures. It is rare for a respondent State to find itself exposed, as a “litigant”, to economic, social and political injury as a result of coercive actions taken by nationals of the applicant State in that State. The avowed purpose of those coercive actions is to halt the construction of the “Orion” pulp mill or to force its relocation, i.e. to cause prejudice to Uruguay’s main right at issue in the case. Nor is it frequent for an applicant State to “tolerate” such a situation, relying on a domestic policy of persuasion, rather than repression, vis-à-vis social movements and, for that reason, failing to exercise the “due diligence” required of the territorial sovereign by general international law in the area, including first and foremost compliance with the obligation not knowingly to allow its territory to be used for acts contrary to the rights of other States (case concerning Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22).
7. Notwithstanding the foregoing points, the Court found that the circumstances of the case were not such as to require the indication of the first provisional measure requested by Uruguay, to “prevent or end the interruption of transit” between the two States and inter alia “the blockading of [the] bridges and roads” linking them (paragraph 43 of the Order). In the Order this conclusion is supported by reasoning which casts no doubt on the facts as such, i.e. on the existence of the blockades of the Argentine access roads to the international bridges. However, the Court did not see in them any “imminent risk” of “irreparable prejudice” to Uruguay’s right to build the “Orion” plant at Fray Bentos pendent lite.
8. Judge Torres Bernárdez takes issue with this finding in the Order because it is based on a “reductionist” approach to the concept of “imminent risk of irreparable prejudice” and to the scope of “Uruguay’s rights in dispute” in the case. This “reductionism” is evidenced by the fact that the Court refrained from considering whether the blockades have caused and/or may continue to cause economic and social prejudice to Uruguay. That however was the raison d’être of Uruguay’s request. Uruguay sought to protect itself from the significant damage caused to Uruguayan trade and tourism inherent in the situation created by the blockades. After all, the blockades were set up with the goal of making Uruguay pay a price, or a “toll”, to be able to pursue the building of the “Orion” plant at Fray Bentos.
9. In this connection, the Judge points out in his opinion that the blockades tolerated by Argentina have created a dilemma for Uruguay: either it halts construction of the “Orion” plant or its pays an economic and social “toll” to be able to continue the building work. Thus, the fact that construction of the plant is continuing does not dispel the “risk of prejudice” to Uruguay’s rights which are infringed by the blockades. On the contrary, the “toll” grows heavier by the day and there is a recognized relationship between the facts out of which the “toll” arises and Uruguay’s claimed “right” to build the Fray Bentos mill pending the final decision by the Court. Moreover, the “toll” creates a security problem because the actions by the “asambleistas” cause alarm and social tension which could give rise to border and trans-border incidents.
10. For Judge Torres Bernárdez, that “toll” may essentially be viewed as lost profit for the Uruguayan economy and one which bears “a risk of prejudice” for the rights that the country is defending in the instant case based on the Statute of the River Uruguay, inter alia the right to continue construction of the Orion mill in Fray Bentos and the right to have the legal dispute between Argentina and Uruguay over the paper mills decided in accordance with Article 60 of the river’s Statute, as “subsequent events may [effectively] render an application without object” (case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66). For example, the passage of time has stripped certain conclusions of Argentina’s Application of 4 May 2006 of their relevance, as ENCE’s planned CMB mill has been relocated to Punta Pereyra on the Uruguayan side of the River Plata. Therein lies the “risk of prejudice” to the rights in dispute for Uruguay in the present case. Social peace is much appreciated by industrial concerns. The Argentine demonstrators are well aware of this, as indicated by the fact that they began the current road and bridge blockades shortly after the Orion project was approved by the World Bank and its lending institutions.
11. The prejudice in question is, by its very nature, “irreparable”, as the Court’s Judgment could not restore the “Orion” project to Fray Bentos should Botnia decide to leave. Although this is not so for the moment, it is not the point. What matters, in Judge Torres Bernárdez’s view, is the “risk of prejudice” and this risk is a real and present one as Argentina has not taken the measures necessary to put an end to the situation caused by the roadblocks nor to prevent a repetition of them. The “irreparable prejudice” also urgently needs to be eliminated because it is a “present risk”.
12. That present risk has steadily increased since the end of November 2006 with the regrettable consequences that can readily be imagined for the sustainable economic development of the country. It also impairs the right to have the dispute resolved by the Court under Article 60 of the Statute of the River Uruguay. The need to protect this right as of now cannot be open to doubt as the duration of the risk of prejudice created by the “toll” threatens the very integrity of the judicial settlement.
13. Furthermore, the harm caused to the Uruguayan economy by the roadblocks is in no way a prejudice which Uruguay is supposed to suffer under the material law applicable to the legal dispute before the Court ¾ i.e. the 1975 Statute of the River Uruguay ¾ nor under the Statute or the Rules of Court or the Order of 13 July 2006 either. Uruguay is entitled to call for an end to the roadblocks and the actions of the demonstrators which are damaging its economy, thus creating a “present risk” for the rights claimed by it in the case. Argentina, in turn, has particular duties of its own in this respect as the State with authority over the territory in which the acts in question are taking place, and also as a Party to the present case. It is surprising that, hitherto, neither of these two duties has prompted the Argentine authorities to put an end to the roadblocks.
14. Lastly, Judge Torres Bernárdez considers that, for the indication of provisional measures, there is an ample prima facie legal link between: (1) the facts related to the blockade of roads and bridges by Argentine demonstrators, tolerated by that country’s authorities; (2) the present risk of irreparable prejudice to Uruguay’s rights at issue; (3) the principle of optimum and rational utilization of the River Uruguay and its water, including for industrial purposes in conformity with the régime governing the river and the quality of its water (Article 27 of the 1975 Statute); and (4) the judicial resolution of disputes under the Statute. Argentina’s Application instituting proceedings would appear to confirm these links.
15. In light of these considerations, and taking account of the arguments and documents presented by the Parties, Judge Torres Bernárdez considers that the circumstances of the case favour the indication of the first provisional measure requested by Uruguay, namely, that Argentina must take “all reasonable and appropriate steps at its disposal to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States”.
16. Judge Torres Bernárdez also disagrees with the Order as regards the failure to indicate, in its operative part, a provisional measure to avoid the aggravation or extension of the dispute or to make its settlement more difficult, which is the matter raised by the second provisional measure requested by Uruguay. For Judge Torres Bernárdez, the particular circumstances of the case, including those subsequent to the hearings which are in the public domain, call for the urgent indication of provisional measures relating to the non-aggravation and non-extension of the dispute addressed to both Parties. Regarding the latter aspect, Judge Torres Bernárdez therefore diverges from Uruguay’s formulation of the second measure it requests (Article 75, paragraph 2, of the Rules of Court).
17. The opinion stresses the full importance of the Court’s power to indicate the above-mentioned measures “independently” of the requests for the indication of provisional measures presented by the parties with a view to safeguarding specific rights. Such declarations have been incorporated into the reasoning of Orders for provisional measures both before and after the LaGrand case.
18. Judge Torres Bernárdez regrets the fact that the Court has not indicated provisional measures for both Parties to avoid aggravating or extending the dispute. The Court should have done so on the basis of international law, namely, on the
“principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute” (Electricity Company of Sofia and Bulgaria, P.C.I.J., Series A/B No. 79, p. 199; LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 503, para. 103).
19. Lastly, Judge Torres Bernárdez concurs with the Order as regards its rejection of the third provisional measure requested by Uruguay, but not for the reason indicated in the Order (para. 51). For him, that third provisional measure lacks precision, is insufficiently specific and the circumstance of the case at present do not require the indication of a measure so broad in scope.
20. In short, Judge Torres Bernárdez concurs with the Order’s conclusion regarding the Court’s prima facie jurisdiction to entertain Uruguay’s request and with its rejection of the third measure requested. On the other hand, he disagrees with the Order’s rejection of the first measure requested, as well as with its rejection of the second measure reformulated so that it is addressed to both parties. These two points of disagreement prevented him from voting in favour of the Order.
Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
Request for the indication of provisional measures
Summary of the Order of 23 January 2007
Application and requests for the indication of provisional measures
The Court recalls that, by an Application filed in the Registry of the Court on 4 May 2006, the Argentine Republic (hereinafter “Argentina”) instituted proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”) for the alleged breach by Uruguay of obligations under the Statute of the River Uruguay, which was signed by Argentina and Uruguay on 26 February 1975 and entered into force on 18 September 1976 (hereinafter the “1975 Statute”). In its Application, Argentina claims that that breach arises from “the authorization, construction and future commissioning of two pulp mills on the River Uruguay”, with reference in particular “to the effects of such activities on the quality of the waters of the River Uruguay and on the areas affected by the river”.
Argentina bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on the first paragraph of Article 60 of the 1975 Statute, which provides inter alia that any dispute concerning the interpretation or application of the 1975 Statute “which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice”.
On the basis of the statement of facts and the legal grounds set out in the Application, Argentina 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 [the Spanish acronym of the Administrative Commission of the River Uruguay] and to Argentina;
(c) the obligation to comply with the procedures prescribed in Chapter II of the 1975 Statute;
(d) the obligation to take all necessary measures to preserve the aquatic environment and prevent pollution and the obligation to protect biodiversity and fisheries, including the obligation to prepare a full and objective environmental impact study;
(e) the obligation to co-operate in the prevention of pollution and the protection of biodiversity and of fisheries; and
2. that, by its conduct, Uruguay has engaged its international responsibility to Argentina;
3. that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligations incumbent upon it; and
4. that Uruguay shall make full reparation for the injury caused by its breach of the obligations incumbent upon it.”
The Court recalls that, immediately after filing its Application on 4 May 2006, Argentina submitted a request for the indication of provisional measures requiring Uruguay: to suspend the authorizations for the construction of the mills and to suspend building work on them pending the Court’s final decision; and to co-operate with Argentina in order to protect and preserve the aquatic environment of the River Uruguay, to refrain from taking any further unilateral action with respect to construction of the two mills which does not comply with the 1975 Statute and also to refrain from any other action which might aggravate the dispute or render its settlement more difficult. By Order dated 13 July 2006, the Court found “that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”. By Order of the same date, the Court fixed time-limits for the filing of the initial written pleadings.
On 29 November 2006, Uruguay, referring to the pending case and citing Article 41 of the Statute of the Court and Article 73 of the Rules of Court, in turn submitted a request for the indication of provisional measures, asserting that they were “urgently needed to protect the rights of Uruguay that are at issue in these proceedings from imminent and irreparable injury, and to prevent the aggravation of the present dispute”. Uruguay stated inter alia that, since 20 November 2006, “[o]rganized groups of Argentine citizens have blockaded a vital international bridge over the Uruguay River, shutting off commercial and tourist travel from Argentina to Uruguay” and that those groups planned to extend the blockades to the river itself. Uruguay claimed to have suffered significant economic injury from these actions, against which Argentina has failed, according to Uruguay, to take any steps. It alleged that the stated purpose of the actions was to force it to accede to Argentina’s demand that it permanently end construction of the Botnia pulp mill, the subject-matter of the dispute, and prevent the plant from ever coming into operation.
At the conclusion of its request Uruguay asked the Court to indicate the following measures:
“While awaiting the final judgment of the Court, Argentina
(i) shall take all reasonable and appropriate steps at its disposal to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States;
(ii) shall abstain from any measure that might aggravate, extend or make more difficult the settlement of this dispute; and
(iii) shall abstain from any other measure that might prejudice the rights of Uruguay in dispute before the Court.”
Jurisdiction of the Court
The Court notes that at the hearings on 18 and 19 December 2006 Argentina challenged the jurisdiction of the Court to indicate the provisional measures sought by Uruguay on the ground, notably, that the request had no link with the Statute of the River Uruguay or with the Application instituting proceedings. In Argentina’s view, the real purpose of Uruguay’s request was to obtain the removal of the roadblocks and none of the rights potentially affected by the roadblocks, that is the right to freedom of transport and to freedom of commerce between the two States, were rights governed by the Statute of the River Uruguay. Argentina argued that those rights were governed by the Treaty of Asunción, which established the Southern Common Market (hereinafter “Mercosur”), pointing out that Uruguay had already seised a Mercosur ad hoc Tribunal in relation to the roadblocks and that that tribunal had handed down its decision on the case on 6 September last, which decision was final and binding and constituted res judicata with respect to the Parties. Argentina contended that Mercosur’s dispute settlement system ruled out the possibility of applying to any other forum.
The Court next sets out Uruguay’s arguments. Uruguay denied that its request for the indication of provisional measures sought to obtain from the Court condemnation of the unlawfulness of the blocking of international roads and bridges connecting Argentina to Uruguay under general international law or under the rules of the Treaty of Asunción. According to Uruguay, the roadblocks constituted unlawful acts violating and threatening irreparable harm to the very rights which it was defending before the Court. Uruguay maintained that the blocking of international roads and bridges was a matter directly, intimately and indissociably related to the subject-matter of the case before the Court and that the Court unquestionably had jurisdiction to entertain it. Uruguay further denied that the measures it had taken within the framework of the Mercosur institutions had any bearing whatsoever on the Court’s jurisdiction, given that the decision of the ad hoc Tribunal of 6 September 2006 concerned different roadblocks ¾ established at another time and with a different purpose ¾ to those referred to in its request for provisional measures and that it had not instituted any further proceedings within Mercosur’s dispute settlement mechanisms with respect to the existing roadblocks.
The Court first points out that, in dealing with a request for provisional measures, it need not finally satisfy itself that it has jurisdiction on the merits of the case but that it will not indicate such measures unless there is, prima facie, a basis on which its jurisdiction might be established. It observes that this is so whether the request is made by the applicant or by the respondent in the proceedings on the merits.
After noting that it already concluded, in its Order of 13 July 2006, that it had prima facie jurisdiction under Article 60 of the 1975 Statute to deal with the merits of the case, the Court examines the link between the rights sought to be protected through the provisional measures and the subject of the proceedings before the Court on the merits of the case. It observes that Article 41 of the Court’s Statute authorizes it to indicate “any provisional measures which ought to be taken to preserve the respective rights of either party” and states that the rights of the respondent (Uruguay) are not dependent solely upon the way in which the applicant (Argentina) formulates its application.
The Court finds that any right Uruguay may have to continue the construction and to begin the commissioning of the Botnia plant in conformity with the provisions of the 1975 Statute, pending a final decision by the Court, effectively constitutes a claimed right in the present case, which may in principle be protected by the indication of provisional measures. It adds that Uruguay’s claimed right to have the merits of the present case resolved by the Court under Article 60 of the 1975 Statute also has a connection with the subject of the proceedings on the merits initiated by Argentina and may in principle be protected by the indication of provisional measures.
The Court concludes that the rights which Uruguay invokes in, and seeks to protect by, its request have a sufficient connection with the merits of the case and that Article 60 of the 1975 Statute may thus be applicable to those rights. The Court points out that the rights invoked by Uruguay before the Mercosur ad hoc Tribunal are different from those that it seeks to have protected in the present case and that it follows that the Court has jurisdiction to address Uruguay’s request for provisional measures.
Provisional measures: reasoning of the Court
The Court observes that its power to indicate provisional measures has as its object to preserve the respective rights of each party to the proceedings “[p]ending the final decision”, providing that such measures are justified to prevent irreparable prejudice to the rights which are the subject of the dispute. It adds that this power can be exercised only if there is an urgent necessity to prevent irreparable prejudice to such rights, before the Court has given its final decision.
In respect of the first provisional measure sought by Uruguay, namely that Argentina “shall take all reasonable and appropriate steps at its disposal to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States”, the Court notes that, according to Uruguay: roadblocks have been installed on all of the bridges linking Uruguay to Argentina; the Fray Bentos bridge, which normally carries 91 per cent of Uruguay’s exports to Argentina, has been subject to a complete and uninterrupted blockade; and the two other bridges linking the two countries “have at times been closed” and that there was a real risk of them being blocked permanently. Again according to Uruguay, these roadblocks have an extremely serious impact on Uruguay’s economy and on its tourist industry and are moreover aimed at compelling Uruguay to halt construction of the Botnia plant, which would be lost in its entirety, thereby leading to irreparable prejudice. Uruguay further claimed that, in encouraging the blockades, Argentina had initiated a trend intended to result in irreparable harm to the very substance of the rights in dispute and that, accordingly, “it is the blockades that present the urgent threat, not . . . [the] impact they may eventually have on the Botnia plant”. The Court notes that Argentina disputed the version of the facts presented by Uruguay and argued that the issue was the blockade of roads in Argentine territory and not of an international bridge. In its view, the roadblocks were “sporadic, partial and geographically localized” and moreover had no impact on either tourism or trade between the two countries, nor on the construction of the pulp mills, which has continued. Argentina stated in this respect that the Orion mill was “at 70 per cent of the planned construction”. It added that it had never encouraged the roadblocks, nor provided the blockaders with any support, and submitted that the partial blocking of roads in Argentina was not capable of causing irreparable prejudice to the rights which will be the subject of the Court’s decision on the merits, and that there was no urgency to the provisional measures sought by Uruguay.
Referring to the arguments of the Parties, the Court expresses its view that, notwithstanding the blockades, the construction of the Botnia plant has progressed significantly since the summer of 2006 with two further authorizations having been granted and that it is now well advanced and thus continuing. It states that it is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay claims in the present case from the 1975 Statute as such and adds that it has not been shown that, were there such a risk, it would be imminent. The Court consequently finds that the circumstances of the case are not such as to require the indication of the first provisional measure requested by Uruguay, to “prevent or end the interruption of transit” between the two States and inter alia “the blockading of [the] bridges and roads” linking them.
The Court next turns to the other two provisional measures sought by Uruguay, namely that Argentina “shall abstain from any measure that might aggravate, extend or make more difficult the settlement of this dispute; and shall abstain from any other measure that might prejudice the rights of Uruguay in dispute before the Court”. The Court refers to Uruguay’s argument that an order can be made to prevent aggravation of the dispute even where the Court has found that there is no threat of irreparable damage to the rights in dispute and notes that, according to Uruguay, the blockade of the bridges over the River Uruguay amounts to an aggravation of the dispute which threatens the due administration of justice. Uruguay further argued that, given Argentina’s conduct aimed at compelling Uruguay to submit, without waiting for the judgment on the merits, to the claims asserted by Argentina before the Court, the Court should order Argentina to abstain from any other measure that might prejudice Uruguay’s rights in dispute. The Court observes that, in Argentina’s view, there was no risk of aggravation or extension of the dispute and nothing in its conduct infringed Uruguay’s procedural rights or endangered Uruguay’s rights to continue the proceedings, to deploy all its grounds of defence and to obtain from the Court a decision with binding force. Argentina added that, in the absence of any link to the subject-matter of the proceedings, should the Court decide not to indicate the first provisional measure, the second and third provisional measures requested by Uruguay could not be indicated independently from the first.
The Court points out that it has on several occasions, in past cases of which it cites examples, indicated provisional measures directing the parties not to take any actions which could aggravate or extend the dispute or render more difficult its settlement. It notes that in those cases provisional measures other than those directing the parties not to take actions to aggravate or extend the dispute or to render more difficult its settlement were also indicated. In this case the Court does not find that there is at present an imminent risk of irreparable prejudice to the rights of Uruguay in dispute before it, caused by the blockades of the bridges and roads linking the two States. It therefore considers that the blockades themselves do not justify the indication of the second provisional measure requested by Uruguay, in the absence of the conditions for the Court to indicate the first provisional measure. For the aforementioned reasons, the Court cannot indicate the third provisional measure requested by Uruguay either.
Having rejected Uruguay’s request for the indication of provisional measures in its entirety, the Court reiterates its call to the Parties made in its Order of 13 July 2006 “to fulfil their obligations under international law”, “to implement in good faith the consultation and co-operation procedures provided for by the 1975 Statute, with CARU [Administrative Commission of the River Uruguay] constituting the envisaged forum in this regard”, and “to refrain from any actions which might render more difficult the resolution of the present dispute”. It points out that its decision in no way prejudges the question of its jurisdiction to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves and that the decision leaves unaffected the right of Argentina and of Uruguay to submit arguments in respect of those questions. The decision also leaves unaffected the right of Uruguay to submit in the future a fresh request for the indication of provisional measures under Article 75, paragraph 3, of the Rules of Court, based on new facts.
*
The full text of the Order’s final paragraph (para. 56) reads as follows:
“For these reasons,
The Court,
By fourteen votes to one,
Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
In favour: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Vinuesa;
Against: Judge ad hoc Torres Bernárdez.”
*
Judges Koroma and Buergenthal have appended declarations to the Order. Judge ad hoc Torres Bernárdez has appended a dissenting opinion to the Order.
___________
Annex to Summary 2007/1
Declaration of Judge Koroma
In a declaration attached to the Order Judge Koroma has pointed out that the decision taken by the Court in this case was judicious. That while the Court found that it had prima facie jurisdiction, but, because no imminent threat of irreparable harm or prejudice to Uruguay’s rights was demonstrated, it could not uphold the request in its entirety, Judge Koroma considered it appropriate to call on the Parties not to take any action that might render more difficult the resolution of the dispute. He believes that this exhortation not only falls within the purview of Article 41 of the Statute ¾ the preservation of the respective rights of the Parties ¾ but should encourage them to solve their dispute peacefully. In his view, the judicial function is not limited to settling disputes and fostering the development of the law but includes encouraging parties in dispute to find a peaceful solution to their dispute on the basis of law rather than otherwise.
Declaration of Judge Buergenthal
Although agreeing with the Court’s decision rejecting Uruguay’s request for provisional measures, Judge Buergenthal argues in his Declaration that the Court has the power to grant two distinct types of provisional measures. One type is based on a finding that there is an urgent need for such measures because of the risk of irreparable prejudice or harm to the rights that are the subject of the dispute over which the Court has prima facie jurisdiction. The other type of provisional measures may be indicated, according to Judge Buergenthal, in order to prevent the aggravation or extension of the dispute by extrajudicial coercive means unrelated to the subjectmatter of the dispute. He submits that by focusing only on the first type, the Court missed an opportunity to thoroughly consider the full scope of its power under Article 41 of its Statute in circumstances involving allegations of extrajudicial coercive measures.
Judge Buergenthal concludes that, despite the regrettable economic harm caused Uruguay by the blockades of the bridges, these actions appear not to have seriously undermined the ability of Uruguay to effectively protect its rights generally in the pending judicial proceedings.
Dissenting opinion of Judge ad hoc Torres Bernárdez
1. In his dissenting opinion Judge Torres Bernárdez first examines the question of the Court’s prima facie jurisdiction and the admissibility of Uruguay’s request for the indication of provisional measures and then the question whether or not there is a risk of irreparable prejudice to the disputed rights claimed by Uruguay and an urgent need to remedy it.
2. In respect of the first question, Judge Torres Bernárdez concludes that Argentina’s contentions as to lack of jurisdiction and inadmissibility are not supported by either the facts of the case or the applicable law. Thus, Judge Torres Bernárdez expresses his agreement with the Court’s rejection of the objections submitted by Argentina (para. 30 of the Order). He also sees in this rejection confirmation that the rights invoked by Uruguay as a party to the 1975 Statute of the River Uruguay, for which Uruguay seeks protection through the indication of provisional measures, are not, prima facie, non-existent or alien to the dispute. They are fully plausible rights in dispute and are sufficiently important and solid to merit possible protective measures in response to a party’s conduct threatening to infringe them. Thus, Uruguay’s claim satisfies the “fumus boni juris” or “fumus non mali juris” test.
3. In respect of the question whether or not there is a risk of irreparable prejudice to the disputed rights claimed by Uruguay and an urgent need to remedy it, Judge Torres Bernárdez begins by recalling that, under Article 41 of the Statute of the Court, the indication of provisional measures presupposes that “irreparable prejudice” shall not be caused in the course of the judicial proceedings to rights which are the subject of dispute and that the Court must therefore be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent (see, for example, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34). But it is obviously unnecessary, where provisional measures are to be indicated, for the “prejudice” itself already to have occurred. It is enough for there to be a serious “risk” of irreparable prejudice to the rights at issue. This explains why it is well-established in the jurisprudence of the Court that provisional measures are aimed at responding not to “irreparable prejudice” per se, but to a “risk of irreparable prejudice” to the rights in dispute. And it is indeed the “risk” and the “urgency” which must be shown.
4. Judge Torres Bernárdez points out that, in addressing the issue of the existence of the risk and its imminence, he will rely essentially on factual elements. He notes that the term “prejudice” as used in the jurisprudence of the Court has a broader, more elastic meaning than economic injury or loss alone. As for the “irreparability” of the prejudice, he concurs that the main test employed in the jurisprudence refers to preserving the integrity and effectiveness of the judgment on the merits.
5. The fact that in the present case the rights claimed by Uruguay, targeted by the “asambleistas” of Gualeguaychu and its environs, are “rights in dispute” before the Court in no way changes Argentina’s obligations as territorial sovereign. Further, as a Party to the case, Argentina must not forestall the Court’s final decision on the “rights in dispute” in the case which it itself referred to the Court. Moreover, the situation has deteriorated since late November 2006. It should have prompted the exercise by the Court of its power to indicate such measures to preserve Uruguay’s rights at issue and to check the marked proclivity towards aggravating and extending the dispute.
6. In the opinion of Judge Torres Bernárdez, the circumstances of the present case require the indication of very specific provisional measures. It is rare for a respondent State to find itself exposed, as a “litigant”, to economic, social and political injury as a result of coercive actions taken by nationals of the applicant State in that State. The avowed purpose of those coercive actions is to halt the construction of the “Orion” pulp mill or to force its relocation, i.e. to cause prejudice to Uruguay’s main right at issue in the case. Nor is it frequent for an applicant State to “tolerate” such a situation, relying on a domestic policy of persuasion, rather than repression, vis-à-vis social movements and, for that reason, failing to exercise the “due diligence” required of the territorial sovereign by general international law in the area, including first and foremost compliance with the obligation not knowingly to allow its territory to be used for acts contrary to the rights of other States (case concerning Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22).
7. Notwithstanding the foregoing points, the Court found that the circumstances of the case were not such as to require the indication of the first provisional measure requested by Uruguay, to “prevent or end the interruption of transit” between the two States and inter alia “the blockading of [the] bridges and roads” linking them (paragraph 43 of the Order). In the Order this conclusion is supported by reasoning which casts no doubt on the facts as such, i.e. on the existence of the blockades of the Argentine access roads to the international bridges. However, the Court did not see in them any “imminent risk” of “irreparable prejudice” to Uruguay’s right to build the “Orion” plant at Fray Bentos pendent lite.
8. Judge Torres Bernárdez takes issue with this finding in the Order because it is based on a “reductionist” approach to the concept of “imminent risk of irreparable prejudice” and to the scope of “Uruguay’s rights in dispute” in the case. This “reductionism” is evidenced by the fact that the Court refrained from considering whether the blockades have caused and/or may continue to cause economic and social prejudice to Uruguay. That however was the raison d’être of Uruguay’s request. Uruguay sought to protect itself from the significant damage caused to Uruguayan trade and tourism inherent in the situation created by the blockades. After all, the blockades were set up with the goal of making Uruguay pay a price, or a “toll”, to be able to pursue the building of the “Orion” plant at Fray Bentos.
9. In this connection, the Judge points out in his opinion that the blockades tolerated by Argentina have created a dilemma for Uruguay: either it halts construction of the “Orion” plant or its pays an economic and social “toll” to be able to continue the building work. Thus, the fact that construction of the plant is continuing does not dispel the “risk of prejudice” to Uruguay’s rights which are infringed by the blockades. On the contrary, the “toll” grows heavier by the day and there is a recognized relationship between the facts out of which the “toll” arises and Uruguay’s claimed “right” to build the Fray Bentos mill pending the final decision by the Court. Moreover, the “toll” creates a security problem because the actions by the “asambleistas” cause alarm and social tension which could give rise to border and trans-border incidents.
10. For Judge Torres Bernárdez, that “toll” may essentially be viewed as lost profit for the Uruguayan economy and one which bears “a risk of prejudice” for the rights that the country is defending in the instant case based on the Statute of the River Uruguay, inter alia the right to continue construction of the Orion mill in Fray Bentos and the right to have the legal dispute between Argentina and Uruguay over the paper mills decided in accordance with Article 60 of the river’s Statute, as “subsequent events may [effectively] render an application without object” (case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66). For example, the passage of time has stripped certain conclusions of Argentina’s Application of 4 May 2006 of their relevance, as ENCE’s planned CMB mill has been relocated to Punta Pereyra on the Uruguayan side of the River Plata. Therein lies the “risk of prejudice” to the rights in dispute for Uruguay in the present case. Social peace is much appreciated by industrial concerns. The Argentine demonstrators are well aware of this, as indicated by the fact that they began the current road and bridge blockades shortly after the Orion project was approved by the World Bank and its lending institutions.
11. The prejudice in question is, by its very nature, “irreparable”, as the Court’s Judgment could not restore the “Orion” project to Fray Bentos should Botnia decide to leave. Although this is not so for the moment, it is not the point. What matters, in Judge Torres Bernárdez’s view, is the “risk of prejudice” and this risk is a real and present one as Argentina has not taken the measures necessary to put an end to the situation caused by the roadblocks nor to prevent a repetition of them. The “irreparable prejudice” also urgently needs to be eliminated because it is a “present risk”.
12. That present risk has steadily increased since the end of November 2006 with the regrettable consequences that can readily be imagined for the sustainable economic development of the country. It also impairs the right to have the dispute resolved by the Court under Article 60 of the Statute of the River Uruguay. The need to protect this right as of now cannot be open to doubt as the duration of the risk of prejudice created by the “toll” threatens the very integrity of the judicial settlement.
13. Furthermore, the harm caused to the Uruguayan economy by the roadblocks is in no way a prejudice which Uruguay is supposed to suffer under the material law applicable to the legal dispute before the Court ¾ i.e. the 1975 Statute of the River Uruguay ¾ nor under the Statute or the Rules of Court or the Order of 13 July 2006 either. Uruguay is entitled to call for an end to the roadblocks and the actions of the demonstrators which are damaging its economy, thus creating a “present risk” for the rights claimed by it in the case. Argentina, in turn, has particular duties of its own in this respect as the State with authority over the territory in which the acts in question are taking place, and also as a Party to the present case. It is surprising that, hitherto, neither of these two duties has prompted the Argentine authorities to put an end to the roadblocks.
14. Lastly, Judge Torres Bernárdez considers that, for the indication of provisional measures, there is an ample prima facie legal link between: (1) the facts related to the blockade of roads and bridges by Argentine demonstrators, tolerated by that country’s authorities; (2) the present risk of irreparable prejudice to Uruguay’s rights at issue; (3) the principle of optimum and rational utilization of the River Uruguay and its water, including for industrial purposes in conformity with the régime governing the river and the quality of its water (Article 27 of the 1975 Statute); and (4) the judicial resolution of disputes under the Statute. Argentina’s Application instituting proceedings would appear to confirm these links.
15. In light of these considerations, and taking account of the arguments and documents presented by the Parties, Judge Torres Bernárdez considers that the circumstances of the case favour the indication of the first provisional measure requested by Uruguay, namely, that Argentina must take “all reasonable and appropriate steps at its disposal to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States”.
16. Judge Torres Bernárdez also disagrees with the Order as regards the failure to indicate, in its operative part, a provisional measure to avoid the aggravation or extension of the dispute or to make its settlement more difficult, which is the matter raised by the second provisional measure requested by Uruguay. For Judge Torres Bernárdez, the particular circumstances of the case, including those subsequent to the hearings which are in the public domain, call for the urgent indication of provisional measures relating to the non-aggravation and non-extension of the dispute addressed to both Parties. Regarding the latter aspect, Judge Torres Bernárdez therefore diverges from Uruguay’s formulation of the second measure it requests (Article 75, paragraph 2, of the Rules of Court).
17. The opinion stresses the full importance of the Court’s power to indicate the above-mentioned measures “independently” of the requests for the indication of provisional measures presented by the parties with a view to safeguarding specific rights. Such declarations have been incorporated into the reasoning of Orders for provisional measures both before and after the LaGrand case.
18. Judge Torres Bernárdez regrets the fact that the Court has not indicated provisional measures for both Parties to avoid aggravating or extending the dispute. The Court should have done so on the basis of international law, namely, on the
“principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute” (Electricity Company of Sofia and Bulgaria, P.C.I.J., Series A/B No. 79, p. 199; LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 503, para. 103).
19. Lastly, Judge Torres Bernárdez concurs with the Order as regards its rejection of the third provisional measure requested by Uruguay, but not for the reason indicated in the Order (para. 51). For him, that third provisional measure lacks precision, is insufficiently specific and the circumstance of the case at present do not require the indication of a measure so broad in scope.
20. In short, Judge Torres Bernárdez concurs with the Order’s conclusion regarding the Court’s prima facie jurisdiction to entertain Uruguay’s request and with its rejection of the third measure requested. On the other hand, he disagrees with the Order’s rejection of the first measure requested, as well as with its rejection of the second measure reformulated so that it is addressed to both parties. These two points of disagreement prevented him from voting in favour of the Order.
http://www.noalapapelera.com.ar
ESTA LINK TE LLEVA A TODA LA INFO DE LA CIJ SOBRE EL CONFLICTO: http://www.icj-cij.org/icjwww/idocket/iau/iauframe.htm
Aca te dejo el comunicado de prensa emitido por la CIJ el 23 de enero luego de la sentencia.
23 January 2007
Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
The Court finds that the circumstances, as they now present themselves to it,
are not such as to require the exercise of its power
to indicate provisional measures
THE HAGUE, 23 January 2007. The International Court of Justice (ICJ), principal judicial organ of the United Nations, today gave its decision on the request for the indication of provisional measures submitted by Uruguay in the case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay).
In its Order, the Court finds, by 14 votes to one, that “the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”.
History of the proceedings
On 4 May 2006, Argentina filed in the Registry of the Court an Application instituting proceedings against Uruguay concerning alleged violations by Uruguay of obligations incumbent upon it under the Statute of the River Uruguay, a treaty signed by the two States on 26 February 1975 (hereinafter “the 1975 Statute”). Argentina charged Uruguay with having unilaterally authorized the construction of two pulp mills on the River Uruguay without complying with the obligatory prior notification and consultation procedure. Argentina maintained that these mills jeopardized conservation of the environment of the river and areas affected by it.
To found the jurisdiction of the Court, Argentina cited Article 60, paragraph 1, of the 1975 Statute, which provides that any dispute concerning the interpretation or application of the Statute which cannot be settled by direct negotiations may be submitted by either party to the Court.
Argentina’s Application was accompanied by a request for the indication of provisional measures requiring Uruguay, inter alia, to suspend the authorizations for the construction of the mills and halt building work on them pending a final decision by the Court and to refrain from any other action which might aggravate or extend the dispute or render its settlement more difficult. In an Order of 13 July 2006 the Court found that “the circumstances, as they [then] present[ed] themselves to the Court, [were] not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”.
On 29 November 2006, Uruguay submitted its own request to the Court for the indication of provisional measures on the grounds that, since 20 November 2006, organized groups of Argentine citizens had blockaded “a vital international bridge over the Uruguay River”, that this action was causing it enormous economic damage and that Argentina had taken no steps to put an end to the blockade. At the end of its request Uruguay asked the Court to order Argentina to take “all reasonable and appropriate steps . . . to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States”; to “abstain from any measure that might aggravate, extend or make more difficult the settlement of this dispute; and finally to abstain “from any other measure that might prejudice the rights of Uruguay in dispute before the Court”.
Reasoning of the Court
The Court notes initially that at the public hearings held on 18 and 19 December 2006, Argentina challenged the jurisdiction of the Court to indicate the provisional measures requested by Uruguay arguing inter alia that those measures had “no link with the Statute of the River Uruguay, the only international instrument serving as a basis for the Court’s jurisdiction” in the case, nor with Argentina’s Application by which the case was brought before the Court. According to Argentina, the real purpose of Uruguay’s request was to obtain the removal of the roadblocks, when none of the rights potentially affected by the roadblocks (the right to freedom of transport and to freedom of commerce between the two States) were rights governed by the Statute of the River Uruguay.
Uruguay, meanwhile, maintained that the blocking of international roads and bridges was a matter “directly, intimately and indissociably related to the subject-matter of the case before the Court” and that the Court “most certainly ha[d] jurisdiction in this dispute”. Uruguay added that the latest roadblocks constituted unlawful acts which violated and threatened irreparable harm to the rights it was seeking to defend before the Court.
The Court observes that in order to indicate provisional measures it must satisfy itself that prima facie a basis exists on which its jurisdiction might be founded and that this is so whether the request is made by the applicant (Argentina) or by the respondent (Uruguay) in the proceedings on the merits. It recalls that, in its Order dated 13 July 2006, it concluded that it had prima facie jurisdiction to deal with the merits of the case.
The Court subsequently examines the link between the rights the protection which is the subject of the provisional measures being sought and the subject of the proceedings before the Court on the merits of the case. In its opinion, the rights claimed by Uruguay, that is (1) to continue the construction and to begin the commissioning of the Botnia mill pending a final decision by the Court and (2) to have the merits of the present case resolved by the Court under Article 60 of the 1975 Statute have a sufficient connection with the subject of the proceedings on the merits initiated by Argentina and may therefore be protected by the indication of provisional measures. Consequently, the Court finds that it has jurisdiction to entertain Uruguay’s request for the indication of provisional measures.
The Court recalls that its power to indicate provisional measures has as its object to preserve the respective rights of each party to the proceedings pending the final decision, providing that there is an urgent necessity to prevent irreparable prejudice to the disputed rights.
The Court then considers the first provisional measure requested by Uruguay. According to the latter, the main bridge between the two States had been subject to a complete and uninterrupted blockade and two other bridges “ha[d] at times been closed”. Uruguay contended that these roadblocks were aimed at compelling it to halt construction of the Botnia plant and claimed that, by encouraging the roadblocks, Argentina “ha[d] initiated a trend that is intended to result in irreparable harm to the very substance of the rights in dispute”. Uruguay added that, accordingly, “it is the blockades that present the urgent threat, not . . . [the] impact they may eventually have on the Botnia plant”. Argentina, on the other hand, maintained that the issue was the blockade of roads in Argentine territory and not of an international bridge. It stated that the roadblocks were “sporadic, partial and geographically localized” and had had no impact on the construction of the pulp mills. It denied having ever encouraged the roadblocks and disputed the irreparable nature of the alleged prejudice.
The Court notes that, notwithstanding the blockades, the construction of the Botnia plant has progressed significantly since the summer of 2006 and that work continues. It states that it is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay claims from the 1975 Statute and adds that it has not shown that, were there such a risk, it would be imminent. The Court consequently finds that the circumstances of the case are not such as to require the indication of the first provisional measure requested by Uruguay (to prevent or end the interruption of transit between the two States and inter alia the blockading of the bridges and roads linking them).
With respect to the other two provisional measures sought by Uruguay, the Court recalls that, although it has on several occasions in past cases indicated provisional measures directing the parties not to take any actions which could aggravate or extend the dispute or render its settlement more difficult, in such cases it always indicated other provisional measures as well.
Concluding its examination the Court does not find that there is at present an imminent risk of irreparable prejudice to the rights of Uruguay in dispute before it caused by the blockades of the bridges and roads linking the two States. It therefore considers that the blockades themselves do not justify the indication of the last two provisional measures requested by Uruguay, in the absence of the conditions for the Court to indicate the first provisional measure.
The Court reiterates its call to the Parties made in its Order of 13 July 2006 “to fulfil their obligations under international law”, “to implement in good faith the consultation and co-operation procedures provided for by the 1975 Statute”, and “to refrain from any actions which might render more difficult the resolution of the present dispute”.
Composition of the Court
The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Torres Bernárdez, Vinuesa; Registrar Couvreur.
Judges Koroma and Buergenthal have appended declarations to the Order. Judge ad hoc Torres Bernárdez has appended a dissenting opinion to the Order.
___________
A summary of the Order appears in the document “Summary No. 2007/1”, to which summaries of the declarations and of the opinion are annexed. In addition, the present press release, the summary of the Order and the full text of the Order can be found on the Court’s website (www.icj-cij.org).
___________