          INTERNATIONAL COURT OF JUSTICE

            REPORTS OF JUDGMENTS,
         ADVISORY OPINIONS AND ORDERS

     CASE CONCERNING PULP MILLS
       ON THE RIVER URUGUAY
            (ARGENTINA v. URUGUAY)

   REQUEST FOR THE INDICATION OF PROVISIONAL
                   MEASURES

             ORDER OF 13 JULY 2006

                 2006
          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE Av DES USINES DE PA
                                   | TE
  Av PAPIER SUR LE FLEUVE URUGUAY
            (ARGENTINE c. URUGUAY)

      DEMANDE EN INDICATION DE MESURES
              CONSERVATOIRES

         ORDONNANCE DU 13 JUILLET 2006

                          Official citation :
     Pulp Mills on the River Uruguay (Argentina v. Uruguay),
          Provisional Measures, Order of 13 July 2006,
                    I.C.J. Reports 2006, p. 113

                      Mode officiel de citation :
Usines de pâte à papier sur le fleuve Uruguay (Argentine c. Uruguay),
        mesures conservatoires, ordonnance du 13 juillet 2006,
                     C.I.J. Recueil 2006, p. 113

                                           Sales number
ISSN 0074-4441
ISBN 92-1-071024-X
                                           No de vente :   915

                                               13 JULY 2006

                                                   ORDER

      PULP MILLS ON THE RIVER URUGUAY
            (ARGENTINA v. URUGUAY)

       REQUEST FOR THE INDICATION OF PROVISIONAL
                       MEASURES

USINES DE PA
           | TE A
                v PAPIER SUR LE FLEUVE URUGUAY
            (ARGENTINE c. URUGUAY)

          DEMANDE EN INDICATION DE MESURES
                    CONSERVATOIRES

                                           13 JUILLET 2006

                                            ORDONNANCE

               113

                              INTERNATIONAL COURT OF JUSTICE

   2006                                       YEAR 2006
  13 July
General List
 No. 135                                      13 July 2006

                          CASE CONCERNING PULP MILLS
                            ON THE RIVER URUGUAY
                                    (ARGENTINA v. URUGUAY)
                      REQUEST FOR THE INDICATION OF PROVISIONAL
                                      MEASURES

                                                 ORDER

               Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges
                         RANJEVA, KOROMA, PARRA-ARANGUREN, BUERGENTHAL, OWADA,
                         SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA,
                         SKOTNIKOV ; Judges ad hoc TORRES BERNÁRDEZ, VINUESA ;
                         Registrar COUVREUR.

                   The International Court of Justice,
                 Composed as above,
                 After deliberation,
                 Having regard to Articles 41 and 48 of the Statute of the Court and to
               Articles 73 and 74 of the Rules of Court,
                   Makes the following Order :
                 1. Whereas 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

               4

114                   PULP MILLS (ORDER 13 VII 06)

1976 (hereinafter the “1975 Statute”) ; whereas such breach is said to
arise 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” ;
   2. Whereas 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 ;
   3. Whereas in its aforementioned Application 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 appli-
cation of the [1961] Treaty and the [1975] Statute which cannot be settled
by direct negotiations may be submitted by either party to the Interna-
tional Court of Justice” ; and whereas Argentina adds that direct nego-
tiations between the parties have failed ;
   4. Whereas in its Application Argentina states that the purpose of the
1975 Statute is “to establish the joint machinery necessary for the opti-
mum and rational utilization” of that part of the River Uruguay which is
shared by the two States and constitutes their common boundary ; whereas
it further states that in addition to governing “activities such as conserva-
tion, 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 ; whereas Argentina submits, in par-
ticular, that Articles 7 to 13 of the Statute provide for an obligatory pro-
cedure 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 ;

  5. Whereas 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 con-
sultation procedure ;

  6. Whereas Argentina maintains in its Application 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-

5

115                   PULP MILLS (ORDER 13 VII 06)

Botnia AB (hereinafter “Botnia”) in February 2005 to construct a second
pulp mill, the “Orion mill”, in the vicinity of the CMB plant ; whereas
according to Argentina the “Uruguayan Government has further aggra-
vated 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” ;
   7. Whereas Argentina claims that the authorization by the Govern-
ment of Uruguay for the projected works was given without due con-
sideration for the environmental impact of the construction of such
plants, and in support of this claim refers to specific deficiencies in the
environmental assessment carried out for each project ;
   8. Whereas in its Application Argentina argues that “the CMB and
Orion pulp mills will jeopardize conservation of the environment of the
River Uruguay and of the areas affected by the river” ; whereas it notes,
in this connection, that these pulp mills have been classified by the
National Directorate for the Environment of the Uruguayan Govern-
ment (hereinafter “DINAMA”, in its Spanish acronym) “as projects pre-
senting a risk of major negative environmental impact”, that “the process
envisaged by the CMB and Orion projects . . . is inherently polluting”
and that “90 per cent of fish production in the Argentina-Uruguay sec-
tion of the river (over 4,500 tonnes per year) is located within the areas
affected by the mills, which are also a breeding area for the river’s migra-
tory fish stocks” ; whereas Argentina further notes with concern “the
amount of effluent which these mills are expected to discharge into the
River Uruguay”, their proximity to “major urban population centres”
and “the inadequacy of the measures proposed for the prevention and
reduction of the potential impact of liquid effluent, gas emissions and
solid waste” ;

  9. Whereas in its Application Argentina states that direct negotiations
between the two States through various channels have failed, including
through the High-Level Technical Group (hereinafter “GTAN”, in its
Spanish acronym) which was set up to resolve the dispute between them
and which met “12 times between 3 August 2005 and 30 January 2006” ;

   10. Whereas, with regard to the current situation, Argentina explains
that “ENCE has carried out only groundworks for the construction of
the CMB mill and has suspended work on construction of the plant for
90 days with effect from 28 March 2006” ; whereas Argentina contends
that “[c]onstruction of the Orion mill continues notwithstanding the dis-
pute between the Parties” and that “[t]he mill is scheduled to commence
operations during the first half of 2007” ; whereas Argentina also states
that “[i]t is furthermore understood that Uruguay is in process of author-
izing the construction of a third mill on the Río Negro, a tributary of the
River Uruguay” ;
   11. Whereas Argentina concludes its Application with the following
submissions :

6

116                    PULP MILLS (ORDER 13 VII 06)

         “On the basis of the foregoing statement of facts and law, Argen-
      tina, while reserving the right to supplement, amend or modify the
      present Application in the course of the subsequent procedure,
      requests the Court to adjudge and declare :
      1. that Uruguay has breached the obligations incumbent upon it
          under the 1975 Statute and the other rules of international law to
          which that instrument refers, including but not limited to :
          (a) the obligation to take all necessary measures for the opti-
              mum and rational utilization of the River Uruguay ;
          (b) the obligation of prior notification to CARU and to Argen-
              tina ;
          (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 obliga-
              tion to protect biodiversity and fisheries, including the obli-
              gation 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 scru-
         pulously 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” ;
   12. Whereas, on 4 May 2006, after filing its Application Argentina
also submitted a request for the indication of provisional measures, pur-
suant to Article 41 of the Statute of the Court and to Article 73 of the
Rules of Court ;
   13. Whereas in its request for the indication of provisional measures
Argentina refers to the basis of jurisdiction of the Court invoked in its
Application, and to the facts set out therein ;
   14. Whereas according to Argentina, the rights which it seeks to safe-
guard by its request
      “derive from the 1975 Statute and from the principles and rules of
      international law necessary for its interpretation and application, in
      particular :
      (a) the right to ensure that Uruguay complies with the obligations
           provided for in the 1975 Statute governing the construction of
           any works liable to affect the régime of the River Uruguay or
           the quality of its waters ;
      (b) the right to ensure that Uruguay shall not authorize or under-

7

117                    PULP MILLS (ORDER 13 VII 06)

          take the construction of works liable to cause significant dam-
          age to the River Uruguay — a legal asset whose integrity must
          be safeguarded — or to Argentina ;
      (c) the right of Argentina to ensure that the riparian population of
          the River Uruguay under its jurisdiction residing in the prox-
          imity of the projected works, or within the areas affected by
          them, may live in a healthy environment and not suffer damage
          to their health, economic damage, or any other type of damage,
          by reason of the construction and commissioning of pulp mills
          in breach of the procedural and substantive obligations pro-
          vided for in the 1975 Statute and the principles and rules of
          international law necessary for its interpretation and applica-
          tion” ;
  15. Whereas in support of its request for the indication of provisional
measures Argentina claims that “the commissioning of the CMB and
Orion pulp mills will inevitably affect significantly the quality of the
waters of the River Uruguay and cause significant transboundary dam-
age to Argentina”, and that “the cause of such damage lies, inter alia, in
the choice of site, the technology adopted and the methods proposed for
the treatment of liquid effluent, solid waste and gas emissions” ;

   16. Whereas Argentina adds that the continued construction of the
works in question “under the conditions described in the Application will
also result in serious social and economic damage in the areas affected by
the River Uruguay” ;
   17. Whereas in its request Argentina further states that the harmful
consequences of these activities would be “such that they could not
simply be made good by means of financial compensation or some
other material provision” and argues that

      “failing adoption of the provisional measures requested, the com-
      missioning of the CMB and Orion mills before a final judgment is
      rendered would seriously and irreversibly compromise the conserva-
      tion of the environment of the River Uruguay and of the areas
      affected by the river, as well as the rights of Argentina and of the
      inhabitants of the neighbouring areas under its jurisdiction” ;
  18. Whereas Argentina contends that the continued construction of
the mills
      “would set the seal on Uruguay’s unilateral effort to create a ‘fait
      accompli’ and to render irreversible the current siting of the mills,
      thus depriving Argentina of its right to have an overall, objective
      assessment of the environmental impact carried out in order to
      determine whether or not the mills can be built, or whether they
      should be built elsewhere, or on the basis of criteria other than those
      currently applied” ;

8

118                   PULP MILLS (ORDER 13 VII 06)

   19. Whereas Argentina states that “[c]ontinued construction would
enable the CMB and Orion mills to be in service even before the end of
the present proceedings” and that the commissioning of the mills is
scheduled for August 2007 for Orion, and June 2008 for CMB ; whereas
Argentina thus maintains that “the situation undoubtedly calls for urgent
measures to be taken”, and further claims that “[n]ot only is there a risk
that actions prejudicial to the rights at issue in this case might be taken
before a final judgment is rendered, but such actions are already being
taken” ;
   20. Whereas at the conclusion of its request for the indication of pro-
visional 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 con-
           struction of the CMB and Orion mills which does not comply
           with the 1975 Statute and the rules of international law neces-
           sary 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 diffi-
           cult” ;
  21. Whereas on 4 May 2006, the date on which the Application and
the request for the indication of provisional measures were filed in the
Registry, the Registrar advised the Government of Uruguay of the filing
of those documents and forthwith sent it certified copies of them, in
accordance with Article 40, paragraph 2, of the Statute of the Court and
with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of
Court ; and whereas the Registrar also notified the Secretary-General of
the United Nations of that filing ;
  22. Whereas on 4 May 2006 the Registrar informed the Parties that
the Court, in accordance with Article 74, paragraph 3, of the Rules of
Court, had fixed 31 May and 1 June 2006 as the dates for the oral pro-
ceedings ;
  23. Whereas, following the Registrar’s subsequent consultations with

9

119                   PULP MILLS (ORDER 13 VII 06)

the Parties, the Court decided to hear the Parties on 8 and 9 June 2006
concerning Argentina’s request for the indication of provisional meas-
ures ; and whereas the Parties were so advised by letters of 11 May 2006
from the Registrar ;
   24. Whereas, on 2 June 2006, Uruguay transmitted to the Court a
copy of a CD-ROM containing the electronic version of two volumes
of documents concerning the request for the indication of provisional
measures entitled “Observations of Uruguay” (paper copies of which
were subsequently received) ; and whereas copies of these documents
were immediately sent to Argentina ;
   25. Whereas, on 2 June 2006, Argentina transmitted to the Court
various documents, including a video recording, and on 6 June 2006, it
transmitted additional documents ; and whereas copies of each set of
documents were immediately sent to Uruguay ;
   26. Whereas, on 6 and 7 June 2006, various communications were
received from the Parties, in which each of them presented to the Court
certain observations on the documents filed by the other ; whereas Uru-
guay raised objections to the production of the video recording filed by
Argentina ; whereas the Court decided not to authorize production of this
recording at the hearings ;
   27. Whereas, since the Court includes upon the Bench no judge of the
nationality of the Parties, each of them proceeded, in exercise of the right
conferred upon it by Article 31, paragraph 3, of the Statute, to choose a
judge ad hoc in the case ; for this purpose Argentina chose Mr. Raúl
Emilio Vinuesa, and Uruguay chose Mr. Santiago Torres Bernárdez ;
   28. Whereas, at the public hearings held on 8 and 9 June 2006 in
accordance with Article 74, paragraph 3, of the Rules of Court, oral
observations on the request for the indication of provisional measures
were presented by the following representatives of the Parties :
On behalf of Argentina :    H.E. Ms Susana Myrta Ruiz Cerutti, Agent,
                            Ms Romina Picolotti,
                            Mr. Philippe Sands,
                            Mr. Marcelo Kohen,
                            Ms Laurence Boisson de Chazournes,
                            Mr. Alain Pellet,
                            H.E. Mr. Raúl Estrada Oyuela ;
On behalf of Uruguay :      H.E. Mr. Héctor Gros Espiell, Agent,
                            Mr. Alan Boyle,
                            Mr. Luigi Condorelli,
                            Mr. Paul Reichler ;
  29. Whereas at the hearings both Parties produced further documents ;
whereas at the beginning of its second round of oral observations, Uru-
guay presented a number of documents including a “statement” made by
Mr. Adriaan van Heiningen, who was listed as an expert in the delegation
of Uruguay ; whereas by a letter dated 9 June 2006 and received in the

10

120                   PULP MILLS (ORDER 13 VII 06)

Registry on 12 June 2006, Argentina objected to the “late filing of th[o]se
documents” on the basis, inter alia, that it was incompatible with the
orderly progress of the procedure and with the equality of the parties and
requested the Court to determine that those documents should not be
considered to form part of the case file ; whereas by a letter dated 14 June
2006, Uruguay maintained that all of the said documents “were sub-
mitted in conformity with the Rules and practice of the Court” and as
such should “remain as part of the record”, except for the statement by
Mr. van Heiningen, which Uruguay requested to be withdrawn in order
to facilitate the task of the Court ; and whereas the Court decided that the
aforementioned documents should not be included in the case file and
the Parties were informed accordingly by letters of 15 June 2006 from
the Registrar ;

                                   * * *
   30. Whereas at the hearings Argentina, inter alia, reiterated the argu-
ments set out in its Application and its request for the indication of pro-
visional measures ; and whereas it asserted that the conditions for the
indication of provisional measures had been fulfilled ;

   31. Whereas in its first round of oral observations, Argentina argued
that Article 60 of the 1975 Statute was “more than sufficient to establish
the prima facie jurisdiction of the Court in accordance with its estab-
lished jurisprudence” ; and whereas it added that Article 12 of the 1975
Statute provided that if, having followed the steps set down in Articles 7
to 11, Argentina and Uruguay fail to agree on works liable to affect navi-
gation, the régime of the river or the quality of its waters, the procedure
indicated in Article 60 shall be followed ;

  32. Whereas Argentina claimed that its rights under the 1975 Statute
arose in relation to two interwoven categories of obligations : “obli-
gations of result that are of a substantive character, and obligations of
conduct that have a procedural character” ;

   33. Whereas Argentina observed that Article 41 (a) of the 1975
Statute imposed substantive obligations and created for Argentina 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 whereas Argen-
tina submitted that Uruguay had respected neither of these obligations ;
whereas Argentina 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” ;

  34. Whereas Argentina stated that Articles 7 to 13 of the 1975 Statute

11

121                   PULP MILLS (ORDER 13 VII 06)

and Article 60 thereof establish a number of procedural rights held by
Argentina :
      “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” ;

whereas it 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” ;

whereas it submitted that none of these three conditions had yet been
met ; whereas it claimed that the above-mentioned procedures were
mandatory and “admit[ted] of no exception” ; whereas 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” ;
   35. Whereas Argentina maintained that its rights, derived from both
substantive and procedural obligations, were “under immediate threat of
serious and irreparable prejudice” ; whereas it submitted that, in order for
provisional measures to be indicated, the jurisprudence of the Court
required only that there should be a serious risk that irreparable preju-
dice or damage might occur ; whereas it contended that the site chosen
for the two plants was “the worst imaginable in terms of protection of the
river and the transboundary environment” ; whereas it argued that envi-
ronmental damage was, at the least, “a very serious probability” and
would be irreparable ; whereas it submitted that economic and social
damage would also result and would be impossible to assess ; whereas it
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 ; whereas it maintained, referring to the
Orders of 17 August 1972 in the Fisheries Jurisdiction (United King-
dom v. Iceland) (Federal Republic of Germany v. Iceland) cases, that
“any dismantling of the mills once built could not ‘restore’ Argentina’s
rights concerning the protection of the riverine environment” and that,
with respect to rights derived from procedural obligations, following the
construction of the mills, there would “no longer be any obligation to be
discharged” ;

12

122                    PULP MILLS (ORDER 13 VII 06)

   36. Whereas Argentina submitted that Uruguay’s actions “irreversibly
prejudice[d] not only Argentina’s rights but also the functioning of [the]
Court, which [had] been given a central role by Articles 12 and 60 of the
[1975] Statute” ; whereas Argentina contended that the Court should be
allowed to settle the dispute “without the final judgment on the merits
having been prejudiced by Uruguay’s unilateral acts” ;

   37. Whereas Argentina further observed that, according to the Court’s
jurisprudence, provisional measures are justified only if there is urgency
in the sense that action prejudicial to the rights of either party is likely to
be taken before a final decision is given ; whereas it argued that “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 preju-
dice to the rights in issue” ; whereas it contended that there was no doubt
that this condition was satisfied since the construction of the mills was
“underway and advancing at a rapid rate” ; whereas it claimed that the
construction itself of the mills was causing “real and present damage” ;
whereas it 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 ;

   38. Whereas Argentina reiterated that the Court should order the sus-
pension of works on the Orion plant and the continuation of the suspen-
sion of works on the CMB plant ; whereas it observed that continued
construction of the plants in breach of the obligations under Chapter II
of the 1975 Statute would “quite simply render those obligations illu-
sory” ; whereas it pointed out that suspension was the only measure
capable of preventing the choice of sites for the plants becoming a fait
accompli ; whereas it submitted, referring to the jurisprudence of the Court,
that suspension should be imposed in order to avoid aggravating the
economic and social damage caused by the construction of the plants ;
whereas it claimed that suspension would avoid prejudging the rights of
both Parties ; whereas it noted that suspension would safeguard the juris-
diction of the Court under the 1975 Statute ; whereas it observed that sus-
pension was physically possible since construction was at an initial stage
and that it was a reasonable measure in the circumstances ; and whereas
it pointed out that the President of Uruguay had accepted the principle of
suspension of the works when, following his meeting with his Argentine
counterpart on 11 March 2006, he asked ENCE and Botnia to suspend
work ;
   39. Whereas Argentina also reiterated that the Court should order
Uruguay to co-operate in good faith with Argentina in accordance
with the legal régime of the River Uruguay, which is based on “mutual
trust” between the two States and a “community of interest” organized

13

123                    PULP MILLS (ORDER 13 VII 06)

around respect for the rights and duties strictly prescribed by the 1975
Statute ;
  40. Whereas Argentina further reiterated that the Court should order
Uruguay to refrain from any further unilateral actions concerning the
construction of the CMB and Orion mills and any other action which
might aggravate the dispute ; whereas it recalled in this regard that Uru-
guay had recently authorized the construction of a dedicated port for the
Orion mill in defiance of the 1975 Statute and that a plan to construct a
third mill on a tributary of the River Uruguay had been announced ;

                                      *
   41. Whereas Uruguay stated in its first round of oral observations that
it had “fully complied with the 1975 Statute of the River Uruguay
throughout the period in which this case has developed” ; whereas
it argued that Argentina’s request was unfounded, that the requisite
circumstances for a request for provisional measures were entirely
lacking and that “the adoption of the requested measures would have
irreparable, disastrous consequences on Uruguay’s rights and on the
future of its peoples” ;
   42. Whereas Uruguay noted 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 ; whereas Uruguay pointed out, however, that this provision
establishes the Court’s jurisdiction only in relation to Argentina’s claims
concerning the 1975 Statute ; whereas it contended that in this case
      “any dispute relating to the possible effects of the mills other than
      those relating to any impairment of the quality of the river waters, or
      indeed other than those stemming directly from such impairment by
      cause and effect, is clearly not covered ratione materiae by the com-
      promissory clause in Article 60 of the Statute” ;
whereas Uruguay cited as examples of disputes not falling within the
Court’s jurisdiction those concerning “tourism, urban and rural property
values, professional activities, unemployment levels, etc.” in Argentina,
and those regarding other aspects of environmental protection in trans-
boundary relations between the two States ;

  43. Whereas Uruguay contended that Argentina’s request for the indi-
cation of provisional measures must be rejected because the breaches of
the Statute of which Uruguay is accused “prima facie lack substance”
and Argentina’s claim “has no serious prospect of success” ; whereas
Uruguay argued that, in “applying both the highest and the most appro-
priate international standards of pollution control to these two mills”, it
had “met its obligations under Article 41 of the Statute” ; whereas Uru-
guay further stated that it had “discharged the obligations imposed upon

14

124                   PULP MILLS (ORDER 13 VII 06)

it by Articles 7 et seq. [of the 1975 Statute] in good faith” ; whereas Uru-
guay contended in particular 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 ;
whereas Uruguay further contended 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” ; whereas 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 Argen-
tine counterpart ; whereas Uruguay explained that the two Ministers had
agreed, first, that the CMB mill could be built according to the Uru-
guayan 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 ; and whereas
Uruguay added that 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 that its terms had been
extended so as to apply also to the projected Orion mill ;

  44. Whereas Uruguay further contended that the Court must reject
Argentina’s request for the indication of provisional measures because
there was no current or imminent threat to any right of Argentina,
so that the conditions of risk of irreparable harm and urgency were not
fulfilled ;
  45. Whereas Uruguay explained, in support of its position, 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 two mills,
guaranteed that they would not cause any harm to the River Uruguay or
to Argentina ; whereas it added that the mills 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” ; whereas

15

125                   PULP MILLS (ORDER 13 VII 06)

Uruguay noted that this lack of risk of harm had been acknowledged by
a number of Argentine officials, including its representatives on CARU ;
whereas Uruguay further observed that the Orion and CMB mills
benefited from technology far more modern, efficient and less polluting
than many similar mills operating in Argentina ;

   46. Whereas Uruguay also pointed out that the Orion and CMB 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, including the issue of various permits by DINAMA ;
and whereas Uruguay concluded from this that, even if it were to be con-
sidered that the operation of the mills might lead to “the contamination
of the river”, the gravity of the “alleged peril to Argentina” was not “suf-
ficiently certain or immediate as to satisfy the Court’s requirement that it
be ‘imminent’ or urgent” ; whereas Uruguay further argued that, “if the
situation were to change”, it would always be possible for Argentina to
submit a fresh request for the indication of provisional measures to the
Court under Article 75, paragraph 3, of the Rules, “based on [the] new
facts” ;

   47. Whereas Uruguay further stressed the distinction to be drawn
between construction of the mills and their operation ; whereas it noted
that Argentina in its Application referred only to risks deriving from the
mills’ operation, not their construction ; whereas Uruguay asserted that
regular monitoring of the water quality since construction work began
had confirmed that the work had not caused any pollution of the river ;
whereas it further argued that, while Argentina in its oral pleadings now
contended that the construction itself of the mills caused an injury to the
Argentine economy, including to its tourism and property sectors, Argen-
tina nevertheless failed to offer any evidence of such injury ; whereas it
pointed out that the Court in any event lacked jurisdiction to indicate
provisional measures aimed at preventing harm of this type since the
rights to which any such injury would relate were not covered by the 1975
Statute, and that suspending the construction work, as requested by
Argentina, would furthermore not bring relief ; whereas Uruguay further
maintained that construction of the mills would not amount to a fait
accompli liable to prejudice Argentina’s rights and that it was for
Uruguay alone to decide whether to proceed with construction and
thereby assume the risk of having to dismantle the mills in the event of an
adverse decision by the Court ;

  48. Whereas Uruguay lastly argued that suspending construction of
the mills would cause such an economic loss to the companies involved
and their shareholders that it would be highly likely to jeopardize the
entire two projects ; whereas it maintained that the provisional measures
sought by Argentina would therefore irreparably prejudice Uruguay’s

16

126                   PULP MILLS (ORDER 13 VII 06)

sovereign right to implement sustainable economic development projects
in its own territory ; and whereas it pointed out in this connection that
the pulp mill projects represented the largest foreign investment in Uru-
guay’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 [GDP]” ; whereas it
contended that the Court should take account in the present proceedings
of the fact that Argentina had aggravated the existing dispute by failing
to prevent the blockade of international bridges between Argentina
and Uruguay, which had “caused enormous damage to the Uruguayan
economy” ;

                                    *   *
   49. Whereas in its second round of oral observations Argentina main-
tained 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 result-
ing from the use of the river as well as the economic and social conse-
quences of the mills ;
   50. Whereas Argentina strongly disputed Uruguay’s assertion that it
had prima facie fulfilled its obligations under the 1975 Statute ; whereas it
submitted, inter alia, that the projects had never been formally notified to
CARU by Uruguay as required by Article 7 of the 1975 Statute and that
Uruguay had not provided adequate information to CARU or GTAN
regarding the pulp mills ; whereas Argentina reiterated its contention that
Article 9 of the 1975 Statute established a “no construction” obligation ;
whereas in support of this contention, citing a work by a Uruguayan
author, Argentina submitted that CARU could give “a valid decision
only with the agreement of the [delegation of each of the two States]” ;
whereas it asserted that there was no bilateral agreement of 2 March 2004
to the effect that the construction of the CMB mill could proceed as
planned ; whereas Argentina 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 information on
CMB to CARU and that CARU would begin monitoring water quality
in the area of the proposed site ; whereas it claimed that Uruguay failed
to supply the information promised ; whereas it contested the interpre-
tation given by Uruguay to the statements of Argentina’s Minister for
Foreign Affairs and its President and emphasized that it took a “clear,
consistent position”, demanding compliance with the requirements of
the 1975 Statute in the competent bodies, in bilateral dealings and within
CARU ;

17

127                    PULP MILLS (ORDER 13 VII 06)

   51. Whereas Argentina reiterated its claim that there was a serious risk
of irreparable prejudice to its rights ; whereas it contended that the envi-
ronmental impact of the plants on the river had not yet been fully con-
sidered ; whereas it noted in this regard that the reports commissioned to
date by the International Finance Corporation (IFC), to which ENCE
and Botnia had applied for financing of the projects, including the Hat-
field Report (a study published in April 2006 by an independent group
appointed by the IFC), had concluded that there were many outstanding
and serious issues ; whereas it emphasized that there was no definitive
opinion of the IFC on the environmental impact of the projects ; whereas
it contested Uruguay’s claim that the projects would operate to the
“highest international standards”, noting, inter alia, that limits for emis-
sions from the ENCE plant had been authorized by Uruguay to be set at
more than 12 times the average limits for emissions for similar plants in
Canada ; whereas it considered that Uruguay’s assertions in this regard
were “[u]nsubstantiated, bold and erroneous” ;

   52. Whereas Argentina reiterated that the requirement of urgency was
satisfied ; whereas it submitted that the construction of the mills itself was
capable of causing “significant damage” to Argentina and was already
doing so ; whereas it contested Uruguay’s argument that the indication of
provisional measures would not improve the situation currently affecting
the Argentine bank of the river ; whereas it maintained that the bringing
into service of the mills was imminent in judicial terms since this would
occur well before the Court rendered its judgment ;

                                      *
   53. Whereas in its second round of oral observations, 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 regarding the supply of infor-
mation were “fully supported by the CARU minutes” ; whereas Uruguay
reiterated its contention that the 1975 Statute does not confer a “right of
veto” upon the parties ; whereas in support of this contention Uruguay
argued that in order to resolve any “difficulties of interpretation caused
by an incomplete text”, it is 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” ; whereas 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 ; whereas Uruguay further reiterated

18

128                    PULP MILLS (ORDER 13 VII 06)

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 ;

   54. Whereas, as regards the risk to the environment of the River Uru-
guay, Uruguay first contended that the 1975 Statute did not require the
parties to prevent all pollution of the river, but only “to take appropriate
measures to prevent pollution of the river from reaching prohibited
levels” ; whereas Uruguay again made the point that, in any event, its
environmental impact assessments showed no risk of significant harm to
Argentina, or to the quality or environment of the river ; whereas it added
that the criticisms in the Hatfield Report, cited by Argentina, were not
directed at the impact assessments carried out by DINAMA, and that,
moreover, “[w]hen the assessments need[ed] improvement or when further
information [was] required, DINAMA [had] the power to require
revision and . . . [had] shown that it [was] quite ready to use that
power” ; whereas Uruguay reiterated that the mills would use the safest
and most up-to-date technology ;

  55. Whereas Uruguay further submitted that
      “it would be impossible for the Court to indicate the provisional
      measures requested by Argentina — the suspension of construc-
      tion –– without prejudging the merits in a way that fundamentally
      and permanently prejudice[d] the very rights that Uruguay [was]
      claiming in these proceedings”,
namely the right “to proceed with construction of the works pending the
Court’s ultimate decision on the merits” ;
   56. Whereas, 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 con-
tinuous joint monitoring with the Argentine Republic” regarding the
environmental consequences of the mills’ future operations ; whereas
Uruguay affirmed its “intention to show scrupulous respect for the envi-
ronment and for the entire range of human rights of the Uruguayan and
Argentine peoples through conduct characterized by transparency, good
faith and the willingness to engage in co-operative, joint action” and
“[made] a point of repeating that the two mills [would] operate according
to European Union standards for the industry which are due to enter into
force in Europe in 2007” ;

                                    * * *
  57. Whereas in dealing with a request for provisional measures, the
Court 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

19

129                   PULP MILLS (ORDER 13 VII 06)

by the applicant appear, prima facie, to afford a basis on which the juris-
diction of the Court might be established (see Armed Activities on the
Territory of the Congo (New Application : 2002) (Democratic Republic
of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002,
I.C.J. Reports 2002, p. 241, para. 58) ;

   58. Whereas Uruguay does not deny that the Court has jurisdiction
under Article 60 of the 1975 Statute ; whereas it asserts, however, 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 ; whereas in this regard Uruguay
insists that rights claimed by Argentina relating to any alleged conse-
quential economic and social impact of the mills, including any impact
on tourism, are not covered by the 1975 Statute ;
   59. Whereas the Parties are in agreement that the Court has jurisdic-
tion with regard to the rights to which Article 60 of the 1975 Statute
applies ; whereas the Court does not need at this stage of the proceedings
to address this further issue raised by Uruguay ; and whereas the Court
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 ;

                                   * * *

  60. Whereas Article 41 of the Statute authorizes the Court “to
indicate . . . any provisional measures which ought to be taken to
preserve the respective rights of either party” ;
  61. Whereas the power of the Court to indicate provisional measures
has as its object to permit the Court to preserve the respective rights of
the parties to a case “[p]ending the final decision” in the judicial proceed-
ings, provided such measures are necessary to prevent irreparable preju-
dice to the rights that are in dispute ;
  62. Whereas the power of the Court to indicate provisional measures
to maintain the respective rights of the parties 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 (see Passage through the Great Belt (Finland v. Den-
mark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports
1991, p. 17, para. 23 ; Certain Criminal Proceedings in France (Republic
of the Congo v. France), Provisional Measure, Order of 17 June 2003,
I.C.J. Reports 2003, p. 107, para. 22) ;

  63. Whereas, according to Argentina, its request for provisional
measures seeks to preserve its rights under the 1975 Statute in relation to
obligations of a procedural character and obligations of a substantive
character ;

20

130                   PULP MILLS (ORDER 13 VII 06)

   64. Whereas the procedural obligations, according to Argentina, cor-
respond to its rights to be fully informed and consulted with regard to
construction activities affecting the river, to be given the opportunity of
objecting to a particular project and, in the event of any such objection,
to have access to effective dispute settlement in this Court before any
construction work is authorized ; and whereas Argentina also contends
that the community of interest and mutual trust on which the 1975
Statute is based requires Uruguay to co-operate in good faith with Argen-
tina in complying with the legal régime the 1975 Statute provides for
the River Uruguay ;

   65. Whereas Argentina claims that the substantive obligations the
1975 Statute imposes on Uruguay consist, first, of an obligation not to
allow any construction before the requirements of the 1975 Statute have
been met ; and, second, of an obligation not to cause environmental
pollution or consequential economic and social harm, including losses
to tourism ;

   66. Whereas Argentina claims that the suspension which it asks the
Court to order, both of the authorization to construct the mills and of
the construction work itself, would avoid irreparable prejudice to its
rights under the 1975 Statute ; whereas in Argentina’s view, if such sus-
pension is not ordered, its right to have the procedure set out in Chap-
ter II complied with would “become purely theoretical” and “the possi-
bility of exercising that right would be lost forever” ; whereas Argentina
next contends that suspension is the only measure that can prevent the
choice of sites for the location of the mills from becoming a “fait accom-
pli” ; whereas Argentina also asserts that suspension would avoid aggra-
vating the consequential economic and social damage being caused by
the construction of the plants ; whereas Argentina contends further that
if the construction of the mills is not suspended, their subsequent
dismantling, once they have been built, would not be capable of restoring
Argentina’s rights “concerning the protection of the riverine environ-
ment” ; and whereas Argentina finally claims that the provisional measures
requested with regard to the suspension of the construction of the mills
are urgently needed since both plants would be commissioned before the
Court will be able to render judgment in the case ;

   67. Whereas Uruguay argues that it has fully complied with its pro-
cedural and substantive obligations under the 1975 Statute ; whereas it
asks the Court in particular to preserve its sovereign right, pending a
decision of the Court on the merits of the case, to implement sustainable
economic development projects on its own territory that do not, in its
view, violate Uruguay’s obligations under the 1975 Statute or the anti-
pollution standards of CARU ; whereas it maintains that any suspension
of its authorization to construct the mills on the River Uruguay or actual
suspension of the works would irreparably damage its right under the

21

131                   PULP MILLS (ORDER 13 VII 06)

1975 Statute to proceed with those projects ;

                                   *   *
   68. Whereas Argentina’s request for provisional measures can be
divided into two parts, the one relating to the request for suspension
and the other to the request for other measures conducive to ensuring
co-operation between the Parties as well as the non-aggravation of the
dispute ; whereas in the first part of its request Argentina asks the Court
to order the suspension of all authorizations for the construction of the
CMB and Orion mills, the suspension of the building work on the Orion
mill, and the adoption of all necessary measures to ensure the suspen-
sion of the work on the CMB mill beyond 28 June 2006 ; whereas in the
second part of its request Argentina asks the Court to order Uruguay
to co-operate with Argentina in good faith in protecting and preserving
the aquatic environment of the River Uruguay, to refrain from taking
any further unilateral action with respect to the construction of the two
mills incompatible with the 1975 Statute ; and also to refrain from any
other action that might aggravate the dispute which is the subject-
matter of the present proceedings or render its settlement more difficult ;

   69. Whereas the Court will first address Argentina’s requests directed
at the suspension of the authorizations to construct the pulp mills and the
suspension of the construction work itself ;

   70. Whereas, as regards the rights of a procedural nature invoked by
Argentina, the Court leaves to the merits the question of whether Uru-
guay 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 ;
whereas the Court 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 pro-
ceedings ;
   71. Whereas in this connection, the Court has taken note of the inter-
pretation of the 1975 Statute advanced by Argentina to the effect that it
provides for a “no construction” obligation, that is to say that it stipu-
lates 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 ; whereas, however, the Court 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 ;

22

132                    PULP MILLS (ORDER 13 VII 06)

  72. Whereas, as regards 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 ; whereas the Court recalls that it has
had occasion in the past to stress in the following terms the great signifi-
cance it attaches to respect for the environment :
      “the environment is not an abstraction but represents the living
      space, the quality of life and the very health of human beings,
      including generations unborn. The existence of the general obliga-
      tion of States to ensure that activities within their jurisdiction and
      control respect the environment of other States or of areas beyond
      national control is now part of the corpus of international law relat-
      ing to the environment.” (Legality of the Threat or Use of Nuclear
      Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 241-242,
      para. 29 ; see also Gabčíkovo-Nagymaros Project (Hungary/Slo-
      vakia), I.C.J. Reports 1997, p. 78, para. 140) ;

   73. Whereas, in the Court’s view, there is however nothing in the
record to demonstrate that the very 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 ;
   74. Whereas Argentina has not persuaded the Court that the construc-
tion of the mills presents irreparable damage to the environment ; whereas
it has also not been demonstrated that the construction of the mills con-
stitutes a present threat of irreparable economic and social damage ;
whereas, 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 ;
   75. Whereas Argentina has not provided evidence at present that
suggests that any pollution resulting from the commissioning of the mills
would be of a character to cause irreparable damage to the River Uru-
guay ; whereas it is a function of CARU to ensure the quality of water of
the river by regulating and minimizing the level of pollution ; whereas, 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) ;

  76. Whereas on the basis of the present evidence before it the Court 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 proceedings the suspension of the authori-
zation to construct the pulp mills and the suspension of the construction
work itself ;

23

133                    PULP MILLS (ORDER 13 VII 06)

   77. Whereas, in view of the foregoing, the Court finds that the circum-
stances of the case are not such as to require the indication of a provi-
sional measure ordering the suspension by Uruguay of the authorization
to construct the pulp mills or the suspension of the actual construction
work ;
   78. Whereas 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 ; whereas the Court 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” (Passage through the
      Great Belt (Finland v. Denmark), Provisional Measures, Order of
      29 July 1991, I.C.J. Reports 1991, p. 19, para. 31) ;

                                     *
   79. Whereas the Court will now turn to the remaining provisional
measures sought by Argentina in its request ;
   80. Whereas the present case highlights the importance of the need to
ensure environmental protection of shared natural resources while allow-
ing for sustainable economic development ; whereas 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 develop-
ment ; whereas from this point of view account must be taken of the need
to safeguard the continued conservation of the river environment and the
rights of economic development of the riparian States ;

   81. Whereas 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 ;
whereas it is not disputed between the Parties that the 1975 Statute estab-
lishes a joint machinery for the use and conservation of the river ;
whereas the Court observes that the detailed provisions of the 1975 Stat-
ute, which require co-operation between the parties for activities affecting
the river environment, created a comprehensive and progressive régime ;
whereas of significance in this regard is the establishment of 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 ; whereas the Statute requires the parties to provide
CARU with the necessary resources and information essential to its
operations ; whereas the procedural mechanism put in place under the

24

134                    PULP MILLS (ORDER 13 VII 06)

1975 Statute constitutes a very important part of that treaty régime ;

   82. Whereas, notwithstanding the fact that the Court has not been
able to accede to the request by Argentina for the indication of provi-
sional measures ordering the suspension of construction of the mills, the
Parties are required to fulfil their obligations under international law ;
whereas the Court wishes to stress the necessity for Argentina and Uru-
guay to implement in good faith the consultation and co-operation pro-
cedures provided for by the 1975 Statute, with CARU constituting the
envisaged forum in this regard ; and whereas the Court further encour-
ages both Parties to refrain from any actions which might render more
difficult the resolution of the present dispute ;
   83. Whereas the Court recalls, in this regard that, as stated above (see
paragraph 56), the Agent of Uruguay, inter alia, reiterated at the conclu-
sion of the hearings the “intention [of Uruguay] 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 con-
tinuous joint monitoring with the Argentine Republic” ;

  84. Whereas, having regard to all the above considerations, and taking
note, in particular, of these commitments affirmed before the Court by
Uruguay, the Court does not consider that there are grounds for it to
indicate the remaining provisional measures requested by Argentina ;

                                  * * *

  85. Whereas the decision given in the present proceedings 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 whereas it leaves
unaffected the right of Argentina and of Uruguay to submit arguments in
respect of those questions ;
  86. Whereas this 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 ;

                                  * * *

     87. For these reasons,
     THE COURT,
  By fourteen votes to one,
  Finds that the circumstances, as they now present themselves to

25

135                   PULP MILLS (ORDER 13 VII 06)

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.

  Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirteenth day of July, two thousand
and six, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Argentine
Republic and the Government of the Eastern Republic of Uruguay,
respectively.

(Signed) President.                        (Signed) Rosalyn HIGGINS,
                                                       President.
                                         (Signed) Philippe COUVREUR,
                                                       Registrar.

  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.

                                                       (Initialled) R.H.
                                                       (Initialled) Ph.C.

26


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING EAST TIMOR

(PORTUGAL v. AUSTRALIA)

ORDER OF 3 MAY 1991

199]

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU TIMOR ORIENTAL

(PORTUGAL c. AUSTRALIE)

ORDONNANCE DU 3 MAI 1991
Official citation :

East Timor (Portugal v. Australia),
Order of 3 May 1991, I.C.J. Reports 1991, p.9

Mode officiel de citation :

Timor oriental (Portugal c. Australie),
ordonnance du 3 mai 1991, C.LJ. Recueil 1991, p.9

Sales number 5 9 4
N° de vente :

3 MAY 1991

ORDER
EAST TIMOR
(PORTUGAL v. AUSTRALIA)
TIMOR ORIENTAL
(PORTUGAL c. AUSTRALIE)
3 MAT 1991

ORDONNANCE
COUR INTERNATIONALE DE JUSTICE

ANNÉE 1991

3 mai 1991

AFFAIRE RELATIVE AU TIMOR ORIENTAL

(PORTUGAL c. AUSTRALIE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu les articles 48 du Statut de la Cour et les articles 31,44, 45 et 48 de son
Règlement,

Vu la requête enregistrée au Greffe de la Cour le 22 février 1991 par
laquelle la République portugaise a introduit une instance contre le
Commonwealth d’ Australie au sujet d’un différend relatif à certains agis-
sements de l’ Australie se rapportant au Timor oriental;

Considérant que, le 22 février 1991, une copie de la requête a été trans-
mise au Commonwealth d'Australie par l'intermédiaire de son ambas-
sade à La Haye;

Considérant que la République portugaise a désigné comme agent
S. Exc. M. Francisco Manuel Baltazar Moita, ambassadeur du Portugal
aux Pays-Bas, et comme coagents M. José Servulo Correia et M. Miguel
Galvao Teles, et que le Commonwealth d'Australie a désigné comme
agent M. Gavan Griffith, Q.C., Solicitor-General, et comme coagents
M. Henry Burmester et S. Exc. M. Donald J. Grimes;

Considérant que, au cours d’une réunion que le Président a tenue avec
les agents des Parties le 2 mai 1991, les Parties sont convenues des délais
indiqués ci-dessous,

Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite:

Pour le mémoire de la République portugaise, le 18 novembre 1991;

4

1991

3 mai
Rôle général

n° 84
TIMOR ORIENTAL (ORDONNANCE 3 V 91) 10

Pour le contre-mémoire du Commonwealth d’Australie, le 1% juin
1992;

Réserve la suite de la procédure.

Fait en anglais et en frangais, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le trois mai mil neuf cent quatre-vingt-onze, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République
portugaise et au Gouvernement du Commonwealth d'Australie.

Le Président,
(Signé) R. Y. JENNINGS.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.


82

                DECLARATION OF JUDGE ELARABY

  Agreement with findings of the Court — Limitations of the international legal
system — Court precluded from the appropriate administration of justice —
Related cases based on different grounds of jurisdiction — Rwanda’s non-
recognition of the compulsory jurisdiction of the Court — Consensual nature of
the jurisdiction of the Court — Gravity of the situation in question –– Importance
of States’ acceptance of the compulsory jurisdiction of the Court.

   1. I have voted with a degree of reluctance in favour of the Judgment
that the Court has no jurisdiction to entertain the Application of the
Democratic Republic of the Congo. While I accept the findings and con-
clusions therein as consistent with the Statute and hence sound in law, I
do firmly believe that States, in general, should not be permitted to evade
international judicial scrutiny regarding a crime as grave as genocide.
The Court’s inability to examine the merits due to jurisdictional limita-
tions cogently demonstrates a major weakness in the contemporary inter-
national legal system. I have therefore joined other judges in a separate
opinion which examines certain aspects of the Court’s jurisprudence
in the matter of reservations. In addition, I consider it appropriate to
append a brief declaration to elaborate further on some other aspects
relating to the jurisdiction of the Court.

   2. In the instant case, the Court was precluded, by virtue of the nature
and limitations of the international legal system as it exists today, from
the appropriate administration of justice. As a result, the Court has not
been able to examine the merits of the claims of the Democratic Republic
of the Congo. This inability is compounded by the fact that the case
forms part of a series of cases brought before the Court by the Demo-
cratic Republic of the Congo relating to armed activities of neighbouring
States on its territory. Although these cases are related and, to a con-
siderable extent, the facts, circumstances and situations at issue overlap,
they are nonetheless distinct cases, each brought upon its own grounds
for jurisdiction and giving rise to its own legal considerations. The Court
referred to this fact in the Judgment by stating that :

       “The Court notes first of all that at the present stage of the pro-
     ceedings it cannot consider any matter relating to the merits of this
     dispute between the DRC and Rwanda. In accordance with the deci-

80

83                  ARMED ACTIVITIES (DECL. ELARABY)

     sion taken in its Order of 18 September 2002 (see paragraph 6
     above), the Court is required to address only the questions of
     whether it is competent to hear the dispute and whether the DRC’s
     Application is admissible.” (Judgment, para. 14.)
   3. This is particularly clear in relation to the jurisdictional bases upon
which the Court has been asked to examine the individual cases. In the
case concerning Armed Activities on the Territory of the Congo (Demo-
cratic Republic of the Congo v. Uganda), both States had made declara-
tions of acceptance of compulsory jurisdiction in accordance with
Article 36, paragraph 2, of the Statute. The case was brought on the
basis, inter alia, of the Charter of the United Nations, the Charter of the
Organization of African Unity and other multilateral treaties to which
both States were parties. The Court thus proceeded to a full examination
of the case on its merits, delivering its Judgment on 19 December 2005. In
the instant case, however, while the Democratic Republic of the Congo
has accepted the compulsory jurisdiction, Rwanda has not. Thus the
Democratic Republic of the Congo has instead invoked the dispute
settlement clauses of a number of multilateral conventions as the basis
for establishing jurisdiction in these proceedings.

   4. In the Court’s Judgment, it examines each individual basis of juris-
diction asserted by the Democratic Republic of the Congo. The Court
has found that none of these suggested bases would establish jurisdiction.
In each case, it has given reasons supporting its findings. Thus, the Court
has been unable to proceed to the merits of the case at hand.
   5. The Court has made such a finding even though it acknowledges
that the allegations made by the Democratic Republic of the Congo are
of a most serious nature. This seriousness has already been acknowledged
in the Court’s Order of 10 July 2002 on the request for the indication of
provisional measures (Armed Activities on the Territory of the Congo
(New Application : 2002) (Democratic Republic of the Congo v.
Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports
2002, pp. 240-241, paras. 54-56, and pp. 249-250, para. 93).
   6. At the provisional measures stage, the Court stated :
     “there is a fundamental distinction between the question of the
     acceptance by a State of the Court’s jurisdiction and the compatibil-
     ity of particular acts with international law ; the former requires con-
     sent ; the latter question can only be reached when the Court deals
     with the merits after having established its jurisdiction and having
     heard full legal arguments by both parties” (Armed Activities on the
     Territory of the Congo (New Application : 2002) (Democratic
     Republic of the Congo v. Rwanda), Provisional Measures, Order of
     10 July 2002, I.C.J. Reports 2002, p. 249, para. 92).

This distinction must be reiterated today. This is all the more so in the

81

84                 ARMED ACTIVITIES (DECL. ELARABY)

light of the Court’s Judgment of 19 December 2005 in the case concern-
ing Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda). That case highlighted the complexity of the
circumstances in the Great Lakes region and the role of all States in the
region in the instability and turmoil which are at the heart of the claims
advanced by the Democratic Republic of the Congo. Yet it is crucial to
note that, whereas in the case concerning Uganda, the Court clearly had
jurisdiction on the basis of the declarations of both States accepting com-
pulsory jurisdiction under Article 36, paragraph 2, in the instant case —
by way of contrast — no such jurisdiction exists. Thus, the Court is not
competent to examine the merits and accordingly must not prejudge the
substantive issues of international law asserted by the Democratic Repub-
lic of the Congo.

   7. At present, the jurisdiction of the Court in particular, and inter-
national adjudication in general, is of a consensual nature. Consent is
its cornerstone and can manifest itself through a declaration under
Article 36, paragraph 2, of the Statute, an appropriate compromissory
clause in a treaty, special agreement or even through tacit acceptance
referred to as forum prorogatum. Without such consent, however, the
Court has no jurisdiction to examine the merits of a particular case.

   8. The promise and possibilities of the Court, as the principal judicial
organ of the United Nations entrusted with the responsibility of settling
disputes, requires that States submit their disputes to the Court and
accept its jurisdiction. The duty of States to settle their disputes peace-
fully and in accordance with international law is emphasized in a number
of important provisions enshrined in the Charter of the United Nations.
Efforts to realize the objective of wider acceptance of the compulsory
jurisdiction of the Court have been exerted on many occasions in recent
years. The Manila Declaration on the Peaceful Settlement of Interna-
tional Disputes was adopted by the General Assembly on 15 Novem-
ber 1982 (A/RES/37/10) with a particular emphasis on the importance of
States recognizing the compulsory jurisdiction of the Court. In 1992 the
then Secretary-General, Boutros-Ghali, in his Agenda for Peace Report
called on all Member States to accept the “general jurisdiction of the
International Court under Article 36 of its Statute, without any reserva-
tion, before the end of the United Nations Decade of International Law
in the year 2000” (An Agenda for Peace : Preventive Diplomacy, Peace-
making and Peace-keeping, Report of the Secretary-General adopted by
a summit meeting of the Security Council on 31 January 1992, A/47/277-
S/24111, para. 39).

  9. More recently, Secretary-General Kofi Annan has called on States
to submit to the compulsory jurisdiction of the Court. In his 2001 Report
on the Prevention of Armed Conflict, he “reiterate[d] [his] appeal to

82

85                  ARMED ACTIVITIES (DECL. ELARABY)

Member States who have not yet done so to consider accepting the com-
pulsory jurisdiction of the Court” (Prevention of Armed Conflict, Report
of the Secretary-General, 7 June 2001, A/55/985-S/2001/574, para. 48).
He continued : “the more States that accept compulsory jurisdiction of
the Court, the higher the chances that potential disputes can be expedi-
tiously resolved through peaceful means” (ibid., para. 48). Recommenda-
tion 6 of this Report “urge[d] Member States to accept the general juris-
diction of the Court” (ibid., para. 50). Thus, while consent forms the
cornerstone of the system of international adjudication, States have a
duty under the Charter to settle their disputes peacefully. Recognition of
the compulsory jurisdiction of the Court fulfils this duty.

   10. Some built-in limitations of the Statute, resonant of limitations of
the international legal system generally, are relics of a past era which
need to be revisited. The case before the Court today represents a clear
reflection of these limitations. It serves as a reminder to the international
community in the twenty-first century of the imperative of actively seek-
ing to overcome the hurdles in establishing jurisdiction. The Court may
thereby play a stronger role in the peaceful settlement of international
disputes and in enhancing respect for international law among States,
thus contributing in fact
     “to bring[ing] about by peaceful means, and in conformity with the
     principles of justice and international law, adjustment or settlement
     of international disputes or situations which might lead to a breach
     of the peace” (Art. 1, para. 1, of the Charter of the United Nations).

                                              (Signed) Nabil ELARABY.

83


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION
DE LA FRONTIERE MARITIME
DANS LA REGION DU GOLFE DU MAINE

(CANADA/ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 27 JUILLET 1983

1983

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY
IN THE GULF OF MAINE AREA

(CANADA/UNITED STATES OF AMERICA)

ORDER OF 27 JULY 1983
Mode officiel de citation :

Délimitation de la frontiére maritime dans la région du golfe du Maine,
ordonnance du 27 juillet 1983, C.J. Recueil 1983, p. 6.

Official citation :

Delimitation of the Maritime Boundary in the Gulf of Maine Area,
Order of 27 July 1983, I. C.J. Reports 1983, p. 6.

N° de vente : 48 6
Sales number

INTERNATIONAL COURT OF JUSTICE

YEAR 1983 1983
27 July
‘ General List
27 July 1983 No. 67

CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY IN
THE GULF OF MAINE AREA

(CANADA/UNITED STATES OF AMERICA)

ORDER

The President of the Chamber of the International Court of Justice
formed to deal with the case concerning Delimitation of the Maritime
Boundary in the Gulf of Maine Area between Canada and the United States
of America,

Having regard to Article 48 of the Statute of the Court and to Article 18,
paragraph 3, Article 31, Article 44, Article 46, Article 49, paragraph 3,
and Article 92 of the Rules of Court,

Having regard to the Special Agreement concluded on 29 March 1979,
and subsequently altered, between Canada and the United States of
America to submit to a chamber of the Court the delimitation of the
maritime boundary in the Gulf of Maine area,

Having regard to the Order of 5 November 1982 fixing 28 June 1983 as
the time-limit for the filing of the Counter-Memorial of each Party ;

Whereas the Counter-Memorials of Canada and of the United States of
America were each filed within the said time-limit ;

Whereas at a meeting held this day each of the two Agents informed the
President of the Chamber that his Government desired to be authorized to
file a further pleading ;

Whereas under Article VI, paragraph 1, of the Special Agreement of
29 March 1979 the Chamber is requested to authorize the submission not

4
GULF OF MAINE (ORDER 27 VII 83) 7

only of Memorials and Counter-Memorials but also of any further plead-
ings it finds necessary ;

Whereas in the present case the filing of a reply by the Parties is found to
be necessary ;

Authorizes the filing of replies by Canada and the United States of
America and fixes 12 December 1983 as the time-limit for the filing of such
replies.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of July, one thou-
sand nine hundred and eighty-three, in three copies, one of which will be
placed in the archives of the Court, and the others transmitted to the
Government of Canada and to the Government of the United States of
America, respectively.

(Signed) Roberto AGo,
President of the Chamber.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.