            SEPARATE OPINION OF JUDGE AD HOC
                   TORRES BERNÁRDEZ

 ranslation]

The opinion only focuses on certain conclusions in the Judgment relating to
   procedural obligations borne by the Respondent — I. Preliminary consid-
 tions : (a) CARU and its role in the prior consultation process under the Stat-
   of the River Uruguay ; (b) the matter of the initial characterization of the
oject by the Party planning to carry out the work ; (c) the practice in national
 ustrial projects — II. Points of agreement between the Parties in the present
 e — III. Stage of the procedure at which Uruguay was obliged to inform
ARU about the works it was planning to carry out — IV. The scope and
ntent of the Parties’ agreements as substitute procedures for the Statute
ocedure : (a) the Agreement of 2 March 2004 between the Ministers for Foreign
fairs ; (b) the Presidents’ Agreement of 5 May 2005 establishing the GTAN ;
  the procedure for the pulp mills in Fray Bentos established by those agree-
 nts — V. Uruguay’s obligations during the period of direct negotiations —
 neral conclusion.

 1. I endorse many of the conclusions reached by the Court in its Judg-
ent. Indeed, I fully support those concerning the scope of the Court’s
  isdiction and the applicable law, the burden of proof and expert evi-
 nce, the rejection of the Applicant’s claims that the Respondent
 eached its substantive obligations, and the dismantling of the Orion
 otnia) mill in Fray Bentos.
 2. In respect of the procedural obligations borne by the Respondent, I
 o fully endorse the conclusions in the Judgment relating to the rejec-
 n of the supposed “strict link” between the procedural and substantive
 ligations, and the alleged “no construction obligation” said to be
 rne by the Respondent between the end of the negotiation period and
e decision of the Court ; I also agree that satisfaction is appropriate
paration. However, I do not support the conclusions on the breaches
und in the Judgment concerning certain procedural obligations of the
  spondent. It is for this reason that I am appending a separate opinion
  the Judgment.
 3. In this opinion, I would like to present some observations and
  rifications, in order to explain where and why, to my great regret, I
  agree with the Court’s decision regarding the Respondent’s breach of
rtain procedural obligations, said in the Judgment to be borne by it. My
wn analysis of the pertinent elements of fact and law leads me to a com-
etely different conclusion to that of the majority on three related issues,
 mely, (1) the stage of the procedure at which Uruguay was obliged to
 orm CARU about the works it was planning to carry out ; (2) the
ope and content of the agreements made by the Parties on 2 March 2004

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d 5 May 2005 as substitute procedure for that of the Statute ; (3) Uru-
ay’s obligations during the period of direct negotiations.

4. I therefore voted in favour of points 2 and 3 of the operative clause
 d against point 1. As far as point 3 is concerned, I agree with the Judg-
ent that Uruguay’s claim is without any practical significance, since
 gentina’s claims in relation to breaches by Uruguay of its substantive
 ligations and the dismantling of the Orion (Botnia) mill have been
 ected (paragraph 280 of the Judgment). All the more so since the res
dicata of the decision in the Judgment applies not only to what is actu-
y written in the operative clause, but also to the grounds in so far as
ese are inseparable from the operative part (Request for Interpretation
  the Judgment of 11 June 1998 in the Case concerning the Land and
aritime Boundary between Cameroon and Nigeria (Cameroon v.
 geria), Preliminary Objections (Nigeria v. Cameroon), Judgment, I.C.J.
 ports 1999 (I), p. 35, para. 10).

                  I. PRELIMINARY CONSIDERATIONS

      1. CARU and Its Role in the Prior Consultation Process
     under Articles 7 to 12 of the Statute of the River Uruguay

 5. The way counsel for the Applicant presented the “Comisión
 ministradora del Río Uruguay” (CARU) (linchpin ; key body) proved
fluential. For my part, I do not have the slightest reservation on the
 portance or central role of CARU in the administration of the River
 uguay, first acknowledged by the Court in its Orders for the
dication of provisional measures, but this is no reason to mistake its
 ture or role in the consultation process under Articles 7 to 12 of the
atute.
 6. CARU is a joint river commission, a shared instrument, which
nctions on a permanent basis and has its own secretariat (Art. 52 of the
atute). The Parties have made it a legal entity in order to perform its
nctions (Art. 50). The functions of CARU are defined in paragraphs (a)
 (k) of Article 56 of the Statute, paragraph (l) of which states that the
ommission performs any other functions assigned to it by the Statute
 d those which the Parties may entrust to it through an exchange of
 tes or any other form of agreement.

7. CARU’s State members are Argentina and Uruguay. It is made up
 an equal number of members from each Party (Art. 49), who are
pointed by their Minister for Foreign Affairs. The members make up
o delegations, one Argentine and the other Uruguayan, each of which
s one vote for the adoption of decisions (Art. 55). Decisions must be
animous, including those on procedural issues. A delegation’s vote
ainst a decision precludes its adoption by CARU. In addition, the

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ommission’s activities can be brought to a standstill by the absence of a
legation or by failure to appoint members of a delegation, which
curred in the circumstances surrounding the present case. CARU’s
 ecision-making” is strictly dependent on the desire of the two delegations
 act in concert.

8. Although it has been made a legal entity in order to perform its
nctions, this does not mean that CARU is a body independent of the
rties, or that the Parties cannot agree to dispense with procedures or
her measures falling within CARU’s ambit : ultimately, the Commis-
 n is an instrument of the two Ministries of Foreign Affairs for facili-
 ing co-operation between the Parties as riparian States along the
ver Uruguay, through ongoing and regular joint management on
e. In any case, in the present proceedings it has not been shown
at CARU is a subject of international law independent of the
rties.

9. CARU’s mandate is essentially administrative and technical ; it also
s the power to draw up “rules” relating to the conservation and
eservation of living resources and the prevention of pollution (see
bjects E.3 and E.4 of the CARU Digest). However, CARU’s mandate is
uch more limited in respect of the procedure relating to works. In this
ea, the Commission has neither the power to authorize or reject projects
 tice of which has been given by the Parties pursuant to Article 7 of the
atute, nor the power to lay down rules for “national” works or instal-
 ions as is the case for the CMB (ENCE) and Orion (Botnia) mills,
cause Article 56 (i) of the Statute only applies to “binational” works
d installations.

10. In the Statute’s “prior consultation process”, CARU only has the
 wer to carry out the initial review under Article 7 aimed at determining
  a preliminary basis within thirty days whether or not the plan needs to
  brought to the attention of the other Party ; to extend the time-limit
plicable under Article 8 of the Statute ; and to serve as an intermediary
r communications between the Parties.
11. The Judgment is informed by an “institutional understanding” of
ARU which I do not endorse — far from it. Consequently, on a
 mber of issues, it offers a portrayal of CARU’s general powers and of
  role in the prior consultation process under Articles 7 to 12 of the
75 Statute of the River Uruguay which I do not support. In my
 inion, this understanding had some bearing on the method used in the
dgment to interpret the Statute’s rules relating to the procedural obli-
tions, and that method has given precedence to the relevant rules of
 ernational law applicable in the relations between the Parties to the
triment of other constituent elements of the general rule of interpreta-
 n applied.

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12. Naturally, I agree with the statement in the Judgment that, in
der to interpret the 1975 Statute, the general rule of interpretation
dified by Article 31 of the Vienna Convention on the Law of Treaties
hich is declaratory of customary law in this area) must be applied. But
at rule incorporates various interpretive elements which must also be
 ighed in the process of interpreting the treaty, such as the text and
e context laid down in the rule, the object and purpose of the treaty,
e subsequent agreements reached between the parties on the subject of the
 erpretation and application of the provisions of the treaty, as well as
y subsequent practice in the application of that treaty which manifests
e agreement of the parties as to its interpretation.

13. In effect, the method of interpretation adopted by the Court in this
se facilitates an “evolutionary interpretation” of the provisions of the
atute of the River Uruguay of which I approve unreservedly in so far as
e Statute’s rules relating to substantive obligations are concerned, in
ht of the wording of Article 41 of the Statute relating to the obligation
  protect and preserve the aquatic environment and prevent the pollu-
 n of the river water. The developments which have taken place over
cent years in general international law, referred to in paragraph 204 of
e Judgment, are irrefutable. The positive attitude shown in the present
oceedings by both Parties, with their general acceptance of these
velopments in international law, is quite remarkable. On the other
 nd, I do not believe that the methods of interpretation leading to such
   evolutionary conclusion are justified in this case in respect of the
atute’s rules relating to procedural obligations. In my opinion, neither
e wording of these rules in their context, nor the subsequent
reements between the Parties, nor the subsequent practice of the
 rties in their interpretation and application of the treaty justify the
 plication of methods leading to evolutionary interpretations. This
 ects the territorial sovereignty of the State, i.e., an area where limits
   the territorial sovereignty of a State are not to be presumed, as the
 rmanent Court of International Justice stated in 1923 in its Judgment
  the case concerning S.S. “Wimbledon” (P.C.I.J., Series A, No. 1,
 24). These limits must be expressly stated or by necessity underlie the
 ms used by the treaty.

 . The Application of the Obligation to Inform CARU as Laid Down
by Article 7, Paragraph 1, of the Statute Raises a Preliminary Issue
        relating to the Initial Characterization of the Project
14. Article 7, paragraph 1, of the Statute lays down two procedural
 ligations, one borne by the Party planning the work and the other
 rne by CARU. The first of these obligations in effect plays the role of
terminative factor in respect of the second, because if the Party plan-
ng the work does not inform CARU of it, the project has not been
 erred to the Commission and the Commission will therefore be unable

                                                                      226

 determine on a preliminary basis within thirty days whether the project
liable to cause significant damage to the other Party.
 15. However, the obligation of the Party planning the work to inform
ARU does not apply to all projects. CARU only has to be informed of
ose projects which are of sufficient size (“entidad suficiente” in the
 thentic Spanish text) to make them “liable” to affect the navigation,
e régime of the river or the quality of its waters. Therefore, the
nguage itself of Article 7, paragraph 1, introduces a precondition,
 ving to do with the characterization of the project, into the modus
 erandi of the rule : before informing CARU of it, it must be determined
hether or not the project in question falls within the scope of the
 ligation to inform CARU laid down by the said provision of the Stat-
e.
 16. However, Article 7 leaves this initial characterization to the Party
anning the work, namely, the territorial sovereign, without prejudice to
e other Party’s right to dispute this initial characterization. For instance,
  light of the documents submitted to the Court, it is clear that,
tween the initial environmental authorization (AAP) of the CMB
 NCE) mill on 9 October 2003 and the Bielsa-Opertti Agreement of
 March 2004 (see below), there was undoubtedly a disagreement
tween the Parties as to the interpretation and application of Article 7,
 ragraph 1, resulting from Uruguay’s initial characterization of the
MB (ENCE) project.
 17. The Applicant’s own conduct in this matter also provides striking
nfirmation that Argentina has always believed that it has the right to
ake the initial characterization of its own projects and industrial instal-
 ions. In point of fact, it has never informed CARU of any of its own
ojects or industrial installations (whether or not large or polluting) :
me 170 firms according to the material in the record, including some
oducing waste material which is highly polluting to the river and
 uatic environment. Moreover, during the oral proceedings of the
esent case, Argentina reaffirmed its right to make the initial characteri-
tion of its own industrial projects. In this connection, it should be
membered that the condition laid down in Article 7 (entidad suficiente)
 es not refer to a solely quantitative criterion, but to a qualitative/
 antitative one, and that Article 28 of the Statute states that every six
onths the Parties are supposed to submit a detailed report to CARU of
e developments they undertake or authorize in the parts of the river
 der their jurisdictions, in order that the Commission may verify whether
e developments taken together may cause significant damage.
 18. Argentina’s affirmation that it has the right to make the initial
aracterization of its own planned works is certainly in keeping with the
 ms of Article 7, paragraph 1, of the Statute. But then, how can it be
nied that Uruguay has the same right in respect of its own industrial
ojects ? The Applicant is not in a legal position to be able to contest
at in October 2003, Mr. Opertti, then Uruguay’s Minister for Foreign
 fairs, had the right to make the initial characterization of the CMB

                                                                         227

NCE) project for the purposes of informing CARU, because allegans
ntraria non audiendus est and Argentina’s unwavering practice has
en to build industrial plants without informing CARU (see the sepa-
 e opinion of Vice-President Alfaro in the case concerning Temple of
eah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports
62, p. 40).

 3. The Practice relating to the Obligation to Inform CARU under
   Article 7, Paragraph 1, of the Statute in the Case of National
                         Industrial Projects
19. The CARU minutes, for example those from 1996 relating to the
 anspapel pulp mill, offer a good illustration of how the issue of the
nitial characterization” of planned works by the territorial State, which
 ses whenever the obligation to inform CARU under Article 7, para-
aph 1, of the Statute applies, has always been kept in mind in situations
volving plans for national industrial plants by one or other of
e Parties on their respective side of the river (and not on the river
elf). CARU members have in fact raised this matter on numerous
casions in the past and their responses have been far from
nsistent.

20. The exchanges between Julio C. Carasales (Argentina) and Edi-
n González Lapeyre (Uruguay) during the Transpapel project are very
ling in this regard. Moreover, they show that the main concern in
ARU in this connection has always been to preserve the quality of the
 ters of the river and not for CARU to intervene, in one form or
other, in the national industrial projects of either country. Ambassador
 rasales (Argentina) could not have put it in clearer terms when he
 ted in 1996 :
   “the pertinent studies by the appropriate national authorities of
   Uruguay having been completed, and the authorization for the
   placement [of the Transpapel plant] having been granted, the Admin-
   istrative Commission of the Uruguay River does not have compe-
   tence to express an opinion on a facility in the territory of one of the
   parties. Once that plant is operating and in production, if it causes
   contamination problems, the C.A.R.U. will have statutory power to
   intervene in the matter.” (Uruguay’s Counter-Memorial, Vol. IV,
   Ann. 80, p. 203.)

 21. The position adopted by Mr. Opertti, Uruguay’s Minister for
oreign Affairs, during the early stages of the Parties’ exchanges
   the CMB (ENCE) project (2003-2004) appears to be in line with
  very similar to that of Ambassador Carasales during the Trans-
 pel project. In his responses to questions from the press, included
  the record, as well as in his statement to the Uruguayan Sen-

                                                                       228

e 1, Mr. Opertti argued that the CMB (ENCE) paper mill due to
  built in Fray Bentos was in fact a “national” concern (also
knowledged by Argentina, at least from the agreement of 2 March
04) and that the project was therefore subject to Uruguayan
w (and not to CARU’s regulations on “binational” works).

22. Furthermore, exercising the right of the territorial State to make
e initial characterization of the project, implicit in Article 7, para-
aph 1, of the Statute, the Minister affirmed that the mill would not
use any significant damage to Argentina and that, under those circum-
 nces, informing CARU of it would imply that there was doubt on
 uguay’s part about the mill’s environmental viability.

I. POINTS OF AGREEMENT BETWEEN THE PARTIES IN THE PRESENT CASE
   CONCERNING THE INTERPRETATION OF ARTICLE 7, PARAGRAPH 1,
           AND ISSUES TO BE DETERMINED BY THE COURT

23. The initial characterization of the projects in question was clearly
 issue when this dispute between Argentina and Uruguay began, but it
 no longer so in the present proceedings, because, as stated in para-
aph 96 of the Judgment, the Parties are agreed in considering that the
o planned mills (the CMB (ENCE) and Orion (Botnia) mills) are
anned works of sufficient importance (“entidad suficiente”) to fall
thin the scope of Article 7, paragraph 1, of the 1975 Statute, and that,
erefore, in principle, CARU should have been informed of them in
cordance with that provision.

24. Furthermore, both Parties acknowledge : (1) that CARU is with-
 t power to approve the projects subject to Article 7 of the Statute and
 which it is informed by the Party planning the project ; and (2) that the
 es under Article 7, like all of the Statute’s other rules on the “prior
nsultation” process, do not constitute jus cogens, and that, therefore,
e Parties are free not to apply them in a given case.

25. This substantially simplified the Court’s examination of the ques-
 n as to whether Uruguay breached its procedural obligations, as
 gentina claims. In essence, this question was reduced to : (1) determin-
g when Uruguay should have informed CARU of the plans for
e mills so that the Commission could conduct its initial screening ; and
    determining the scope and content of the agreement made
   2 March 2004 by the Ministers for Foreign Affairs, Mr. Bielsa
 rgentina) and Mr. Opertti (Uruguay), and that made on 5 May 2005
  the President of Argentina, Mr. Néstor Kirchner, and the President

 Official record, statement by the Minister for Foreign Affairs, Mr. Didier Opertti, to
 Uruguayan Senate (Nov. 2003), Memorial of Argentina, Vol. VII, Ann. 4, pp. 73-75.

                                                                                229

 Uruguay, Mr. Tabaré Vázquez, establishing a high-level technical
oup (GTAN).

 II. STAGE OF THE PROCEDURE AT WHICH URUGUAY WAS OBLIGED TO
 NFORM CARU ABOUT THE WORKS IT WAS PLANNING TO CARRY OUT

26. Determining the stage or point at which the State planning a work
obliged to inform CARU raises a question of the interpretation of
 ticle 7, paragraph 1, because the text of the provision does not specify
 s. Should CARU be informed “during the planning phase of the
oject” ? Or, “after this stage but before authorization is given to carry
t the planned construction activity” ? And, in the case of the first
pothesis, before or after an initial environmental authorization, known
 Uruguayan law as “Autorización Ambiental Previa (AAP)”, has been
anted by the territorial State ?

 27. According to the Judgment, the obligation of the State planning
tivities referred to in Article 7 of the Statute to inform CARU “will
come applicable at the stage when the relevant authority has had the
oject referred to it with the aim of obtaining initial environmental
 thorization and before the granting of that authorization” (para. 105).
  o not agree with the majority’s conclusion, because it refers to a stage
o early in the planning process. This, in turn, may in part be explained
  an institutional understanding of CARU, with which I also disagree,
 d by the link the Judgment makes between the obligation to inform
ARU, laid down by Article 7, paragraph 1, of the 1975 Statute of the
 ver Uruguay, and the principle of prevention, which, as a customary
 e, is now part of the corpus of substantive rules of international environ-
ental law. However, this finding introduces limitations on the State’s
 ritorial sovereignty during the planning phase of an industrial project,
hich go well beyond those which are explicit in Article 7 of the Statute
  by necessity underlie the text. This may be explained by the shared
volutionary” intent that the majority attributes to the Parties on this
 int, of which there is no evidence at all either in Article 7 or in any of
e other procedural rules making up the “prior consultation process” of
e 1975 Statute, that is to say, that this is based on a presumption. How-
er, as stated earlier in paragraph 13, limitations on a State’s territorial
vereignty are not to be presumed.

I believe that the adoption of methods characteristic of “evolutionary”
 erpretation is not justified in the present context quite simply because
e wording of the provisions laying down the “prior consultation pro-
ss” of the 1975 Statute, including therefore Article 7, does not directly
 indirectly permit the interpreter to do so. In fact, by adopting such
 thods, the majority’s recourse to the “relevant rules of international law
plicable in the relations between the parties” (Art. 31, para. 3 (c), of

                                                                        230

e Vienna Convention on the Law of Treaties) is not aimed at determin-
g the stage or point at which the territorial State is obliged to inform
ARU pursuant to the obligation set forth in Article 7, paragraph 1, of
e Statute, but at determining the best time to do so from the point of
 w of applying the customary principle of prevention under interna-
 nal environmental law.

 As a result, the role of the “relevant rules of international law appli-
ble in the relations between the parties” in the interpretation process is
verted. Instead of having recourse to the customary law as one of
veral elements in determining the meaning and scope of Article 7,
 ragraph 1, of the 1975 Statute, the treaty provision is assigned the task of
  isfying the requirements of the application of the customary principle
  prevention. Consequently, the text, the context and the subsequent
 reements or practice become trivial elements in the interpretation pro-
ss of Article 7 of the Statute, which in effect is aimed at extending the
 plication of the customary obligation of prevention (which derives
om a substantive rule) to the procedural rules of the “prior consultation
ocess” of the Statute of the River Uruguay. Moreover, I strongly fear
at the decided outcome will become an additional source of difficulty
r one or both of the Parties in the future.

28. For example, under Uruguayan law, the fact that a request for ini-
 l environmental authorization is submitted by a third party, or that
 NAMA considers that request, or even makes a favourable recom-
endation to the higher authorities, does not mean that the planned
tivity in question can be described at any stage in this process as a
anned activity of the Uruguayan State. Indeed, throughout this whole
ocess, the State has not approved anything and, as a result, it cannot be
 d that “Uruguay is planning to carry out the work”. It is only once the
 tial environmental authorization (AAP) required by Uruguayan law
 s been issued that the Uruguayan State can be said to have agreed to
e project and then only in respect of its environmental viability, because,
 order to undertake activities or works relating to the construction of a
oject, further permits or authorizations are required, in particular an
 vironmental Management Plan (“PGA” in Spanish).

29. Under Uruguayan law, initial environmental authorizations
 APs) do not authorize construction activities or works of any sort :
e holder of an AAP only has the right to request a construction
 thorization or permit (see the affidavit of Alicia Torres, Director of
INAMA). Construction authorizations or permits, with their corres-
 nding PGA, come much later in the administrative process, some-
mes even years later, and only if the AAP for the project has not
pired beforehand. In all events, in order to start the construction or
 er commissioning phase (known as the “operational” phase), fur-
er authorizations from the competent Uruguayan authorities are

                                                                         231

quired after the initial AAP under the terms of the Uruguayan law
 force.
30. Furthermore, specifying the stage or point at which CARU must
 informed by reference to the provisions or rules of the law of the State
ncerned, as the Judgment does, is not a good idea, since this subordi-
tes the operation of the obligation under international law to inform
ARU to the national law of one or other of the Parties. National law
n vary from country to country and may be modified at any time with-
 t the consent of the other Party, with the regrettable result that one
 rty may be obliged to inform CARU of its plans earlier than the other.
owever, I do not believe that such intent can be attributed to the draft-
  of the 1975 Statute of the River Uruguay.

 31. My position on this issue is based on the text of Article 7, para-
aph 1, and on Article 28 of the Statute, as well as on the object and
 rpose of informing CARU, on the relevant provisions of the CARU
 gest elaborating on the Statute (Subject E.3, title 2, Chap. 3, Sec. 1,
 t. 2 and Chap. 1, Sec. 1, Art. 1 (a)) and on the practice of the Parties
 CARU in such cases as the Transpapel mill, the M’Bopicua port, the
 tnia port and the Nueva Palmira freight terminal. These interpretative
 ments do not endorse the theory that informing CARU for the
 rposes of Article 7, paragraph 1, of the Statute must precede “any
 thorization”.
 32. It is clear from the wording of the Article that the obligation to
 orm is tied to the “carrying out” of the planned “work” (the authentic
 anish text is unambiguous: “La Parte que proyecte la construcción de
 evos canales . . . o la realización de cualesquiera otras obras . . .”). That
e State is only planning the “work” is not sufficient for the obligation
 inform CARU to become applicable. According to the text of the pro-
 ion, the State must also be “planning the carrying out of the work”,
cause it is only during the carrying out or implementation of the plan
at activities or works relating thereto could affect the navigation, the
gime of the river or the quality of its waters and thereby cause signifi-
nt damage to the other State, since the river is a shared natural
 ource.
 33. It is also essential not to lose sight of the fact that the object and
 rpose of informing CARU, pursuant to Article 7, paragraph 1, of the
atute, is simply to allow the Commission to determine on a preliminary
 sis within thirty days whether the project is liable to affect the naviga-
 n, the régime of the river or the quality of its waters and thereby cause
 nificant damage to the other State. This refers to activities or works
hich could cause damage of a physical nature to the river or its waters.
  e mere granting by a public administrative body of an “authorization”
not an act or an activity which is likely to cause such effects.

34. In the present case, Argentina does not claim to have suffered any
nificant damage solely as a result of Uruguay granting the AAPs for

                                                                          232

e CMB (ENCE) or Orion Botnia mills, or as a result of the “prelimi-
 ry works” to the construction of the mills which Uruguay authorized.
   the start of the case, Argentina spoke of “risks”, because at the
me there had been no construction works. In the oral phase, the
pposed significant damage did not for the most part relate to the
onstruction” works, preliminary or otherwise, of the Orion (Botnia)
 ll, but rather to the negative effects on the river and its waters of the
 ll’s “operation”, that is, the effects of its commissioning from
November 2007 onwards.

35. In light of the foregoing, I consider that, where the text of Arti-
  7, paragraph 1, is silent, the issue should be resolved by the interpreter
  looking to the rule of general international law (Art. 31, para. 3 (c),
 the Vienna Convention on the Law of Treaties). And what does inter-
tional law have to say on the matter ? It says that the information must
  “timely” (“en temps utile”) or communicated “in a timely manner”
opportun”) (see, for example, Art. 12 of the 1997 Convention on the
 w of the Non-Navigational Uses of Watercourses).

36. Applied to Article 7, paragraph 1, of the Statute, this simply
eans that the State must inform CARU sufficiently in advance of the
ain aspects of the work, how it is to be carried out and the other tech-
cal data on the project (Art. 7, para. 3), in order to enable the proce-
 res provided for in Articles 7 to 12 to be carried out as laid down by
e Statute.
37. In any case, logically, Article 7, first paragraph, has meaning only
 construed as requiring that the information be communicated at a
 ge when solid technical information is available on the project, but
fore the project is so far advanced in its construction that any assess-
ent of the potential damage from the industrial facility would come too
 e to offer any remedy, which would undoubtedly be contrary to that
ovision of the Statute.

                                    *
 38. As stated earlier, a Uruguayan AAP is a necessary but by no
eans sufficient authorization for its holder to carry out construction
orks or commissioning activities. In the case of ENCE, the company
 tained its AAP on 9 October 2003 and had only carried out ground-
 aring works before the project was abandoned in 2006 ; and in that of
 tnia, after its AAP of 14 February 2005, the company also carried out
her preparatory works (such as constructing the concrete foundations
 d the plant’s chimney) before Uruguay granted it the authorizations to
 ild the actual mill ; these were followed much later by the authorization
 commission the mill. The case of Botnia is telling in this respect : con-
 uction works for the mill did not begin until approximately one year

                                                                        233

 er its AAP of 14 February 2005. Moreover, between that AAP and the
mmissioning of the mill on 9 November 2007, the company received
e following approvals :

  on 12 April 2005, of its Environmental Management Plan (“PGA” in
  Spanish) for the removal of vegetation and earth moving ;

  on 22 August 2005, of its PGA for the construction of concrete foun-
  dations and the chimney ;
  on 18 January 2006, of its PGA for the construction phase of the
  works ;
  on 10 May 2006, of its PGA for the construction of the wastewater
  treatment plant ;
  on 9 April 2007, of its PGA for the creation of an industrial non-
  hazardous waste landfill ;
  on 9 April 2007, of its PGA for the construction of a solid industrial
  waste landfill ;
  on 31 October 2007, of its PGA for operations ;
  on 8 November 2007, of the actual operation of the plant (Uruguay’s
  Rejoinder, para. 2.48, CR 2009/22, p. 13).
39. It follows that on the date of conclusion of the agreements which
ll be examined below, (the “understanding” between the Ministers for
 reign Affairs (Bielsa-Opertti) of 2 March 2004 and the agreement
 ablishing the GTAN between the Presidents (Kirchner-Vázquez) of
May 2005, both of which, in my view, render the provision set forth in
 ticle 7, paragraph 1, of the Statute of the River Uruguay inapplicable
 this case) the respective time-limits for informing CARU timely or in a
mely manner about the implementation of the CMB (ENCE) mill
oject and the Orion (Botnia) mill project had not expired, as Uruguay
ll had the opportunity to do this in a timely or appropriate manner for
e purposes of the aims to be achieved through the information process.
40. Therefore, on the date of the agreements, Uruguay could not have
eached the obligation to inform CARU under Article 7, paragraph 1,
 the Statute, because “[a]n act of a State does not constitute a breach of
  international obligation unless the State is bound by the obligation in
 estion at the time the act occurs” and “[t]he breach of an international
 ligation by an act of a State not having continuing character occurs at
e moment when the act is performed, even if its effects continue”
 rt. 13 and Art. 14, para. 1, Articles on Responsibility of States for
ternationally Wrongful Acts).
41. There was, therefore, no “wrongful delay” by Uruguay in respect
 the obligation to inform CARU under Article 7, paragraph 1, of the
atute of the River Uruguay before the conclusion of the above-
entioned subsequent agreements between the Parties. I would add that
e Parties are agreed that the acts amounting to any procedural breaches
volving Articles 7 to 12 of the Statute are to be categorized as being

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nstantaneous” in nature (Argentina’s Memorial, paras. 8.12 et seq.;
R 2009/19, p. 45, para. 3).

   IV. THE SCOPE AND CONTENT OF THE PARTIES’ AGREEMENTS OF
                2 MARCH 2004 AND 5 MAY 2005

 42. In the case of both ENCE and Botnia, the Parties jointly decided
 dispense with the preliminary review by CARU provided for in Arti-
  7 of the Statute and to proceed immediately to the direct consulta-
 ns and negotiations referred to in Article 12. In both cases, Argentina
 s the Party which sought to hold direct consultations with Uruguay at
mes when CARU did not offer a viable framework, either because the
ommission had halted its sessions, or because it was deadlocked.

43. As the rules laid out in Articles 7 to 12 of the Statute of the River
 uguay are not peremptory norms (jus cogens), there is nothing to pre-
nt the Parties from deciding by “joint agreement” to proceed immedi-
ely to direct consultation or negotiations without having to adhere to
e procedures under the Statute. And that is precisely what they did.
 is “joint agreement” does indeed exist : it is manifest in the two above-
entioned agreements which Uruguay invoked in the present proceed-
gs and which Argentina has acknowledged exist, although it disputes
e content and the scope which Uruguay affords them.
44. The Judgment recognizes that there is an “understanding” (Bielsa-
pertti agreement) and an “agreement” (Presidents’ agreement establish-
g the GTAN) which are binding on the Parties since they have entered
 o them (paras. 128 and 138 of the Judgment), but rejects that in the
esent case their effect was to depart from the Statute’s procedures
 rts. 7-12). For the reasons set out below, I disagree with this.

   1. The Understanding of 2 March 2004 between the Ministers
                       for Foreign Affairs
45. On 9 October 2003, at a meeting between Presidents Kirchner
 rgentina) and Battle (Uruguay) in Anchorena, (Colonia, Uruguay), the
bject of the paper pulp mills in Fray Bentos appears to have come up.
 t nowhere in the material submitted to the Court is there any reference
 the Presidents’ conversations on the subject. However, the Ministers
r Foreign Affairs, Messrs. Bielsa (Argentina) and Opertti (Uruguay),
d refer to the “M’Bopicuá Plant” at a press conference of which a tran-
 ipt does appear in the record. Minister Bielsa said :
      “We talked about the M’Bopicuá plant. The idea is that when the
   company issues its environmental assessment plan, that report can
   be made known. From the point of view of Argentina, if the report
   is satisfactory regarding the environmental issues, something that
   Uruguay is also pursuing in its capacity as the sixth leading nation in

                                                                      235

   the world in terms of environmental protection, then we shall be in
   agreement.
   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
     The position of the two nations is absolutely in harmony [sic].
   We . . . want to see that this plant is actually installed, that these jobs
   can actually be created, that the investment can actually go forward
   and that this does not involve any deterioration for the environ-
   ment.” (Uruguay’s Counter-Memorial, Vol. II, Ann. 14.)

nd Minister Opertti (Uruguay) said :
       “La opinión oficial del Gobierno es muy sencilla y muy clara : esto
   se trata de una inversión en territorio uruguayo sujeta a ley uru-
   guaya. Naturalmente que es una inversión importante y si de esa
   inversión pudieren directa o indirectamente derivar efectos que pudi-
   eran de alguna manera poner en riesgo valores ambientales, que
   tanto la Argentina como el Uruguay defienden porque los dos ten-
   emos el mismo credo en esa materia, naturalmente que los dos tra-
   taremos de evitar que eso suceda. Y para ello ya existen mecanismos
   . . . hay una Comisión Administradora del Río Uruguay y a ella lle-
   garemos si es preciso.” 2 (Ibid.)
46. But, also on 9 October 2003, MVOTMA (Ministerio de Vivienda
 denamiento Territorial y Medio Ambiente) granted the AAP to ENCE
Gabenir S.A.” at the time) for the “Celulosa de M’Bopicuá” (CMB)
 per pulp mill on the left bank of the River Uruguay at Fray Bentos,
ar the international bridge and opposite the Argentine region of Guale-
 aychú, where the population had demonstrated against the building of
e plant. Argentina considered this a breach of Article 7 of the Statute
 the River Uruguay and protested against the granting of that AAP to
NCE, notably by ceasing to attend CARU meetings (that situation con-
 ued until the conclusion of the agreement of 2 March 2004).

47. The Parties, however, continued their discussions on the CMB
NCE) project at a higher level — through ministers and Ministers for
 reign Affairs —, in other words, outside CARU, whose work had
me to a halt. Thus, by a diplomatic Note dated 27 October 2003, for
ample, Uruguay’s Ministry of Foreign Affairs transmitted to Argentina :
  the environmental impact assessment for ENCE ; (2) DINAMA’s

  “The Government’s official position is very simple and very clear : this is an invest-
  ment on Uruguayan territory, subject to Uruguayan law. It is, of course, a substan-
  tial investment and, were there a risk of this investment, directly or indirectly, in any
  way jeopardizing the environmental values to which both Argentina and Uruguay
  subscribe — our approaches being the same in that respect — both countries would
  naturally endeavour to prevent such a risk from materializing. Mechanisms to that
  end are already in place . . . there is an Administrative Commission of the River Uru-
  guay, to which we could turn should the need arise.”

                                                                                236

  October 2003 technical report on the environmental impact
sessment ; and (3) the AAP of 9 October 2003. Further, on 7 Novem-
r 2003, Uruguay transmitted to Argentina, at the latter’s request, a
mplete copy of the MVTOMA file on the ENCE project (totalling
683 pages). Argentina therefore received all the information relating to
e CMB (ENCE) project only a few days after Uruguay granted the
AP to ENCE on 9 October 2003.
48. Argentina has admitted these facts in the present proceedings and
 o did so at the time they occurred. For example, in the report to the
 gentine Senate on 2004 (prepared in 2005) by the Head of the Argen-
 e Cabinet Office, Dr. Alberto Angel Fernández, the following response
 pears from the Argentine Ministry of Foreign Affairs to a question
 sed :
     “As a consequence of this grave situation, and not finding within
  the ambit of CARU the necessary consensus to resolve the matter,
  CARU halted its sessions and consideration of the matter was left to
  both Foreign Ministries.
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
     II. In this context and by virtue of the impasse at CARU, the
  Argentinean Foreign Ministry requested the technical information
  corresponding to Uruguay. In November 2003, in accordance with
  the proposal by the Argentinean Foreign Ministry, the Uruguayan
  Foreign Ministry sent the documentation related to the Cellulose
  project in M’Bopicuá . . . to the Argentinean Embassy in Monte-
  video.” (Uruguay’s Rejoinder, Vol. II, Ann. R14, p. 616 ; emphasis
  added.)
In his statement on the dispute with Uruguay, made to the Foreign
 fairs Commission of the Argentine Chamber of Deputies on 14 Feb-
ary 2006, the Argentine Minister for Foreign Affairs, Mr. Taiana,
ade similar comments on the workings of the information and prior
nsultation process of the Statute of the River Uruguay :

     “It may occur, however, that the parties may not reach an agree-
  ment within the sphere of CARU over the impact of the projected
  works on the ecosystem associated with the Uruguay River. In this
  last situation, the matter leaves the orbit of competence of the
  Commission and is turned over to be considered at the level of the
  Governments.” (Ibid., Vol. II, Ann. R16 ; Argentina’s Application
  instituting proceedings, Ann. III, p. 4.)
 49. Using the information transmitted by Uruguay, outlined above,
 gentina’s technical advisers to CARU studied the CMB (ENCE) project
 d produced a report for their authorities in February 2004. They con-
uded that “there would be no significant environmental impact on the
 gentine side” (Uruguay’s Counter-Memorial, Vol. III, Ann. 46). Argen-
 a’s delegates to CARU also supported this conclusion (Uruguay’s

                                                                    237

ounter-Memorial, Vol. IV, Ann. 99). This report reassured Argentina
 out the possible effects of building and operating the disputed mill and
 ened the way to further meetings of the Parties and, eventually, to the
nclusion of the agreement between Ministers Bielsa and Opertti on
March 2004.
 50. Argentina has argued in these proceedings that the agreement of
March 2004 did not render Article 7 of the Statute inapplicable in this
se, and the Judgment concurs with the Applicant on this point. But, the
tual text of the agreement, recorded in the CARU minutes of
   May 2004, and other pieces of documentary evidence from official
  gentine sources, have convinced me to the contrary. In my view, these
 rious factors tip the balance resolutely in favour of Uruguay’s version
  the facts as presented in its written pleadings and during the oral pro-
edings, that is, that the Ministers agreed at the time that the CMB
 NCE) pulp mill would be built in Fray Bentos on condition : (1) that
ARU maintained a certain level of control over technical aspects, as
scribed in the agreement, relating to the construction of the mill (which
 in no way connected to the preliminary review under Article 7, para-
aph 1, of the Statute) ; and (2) that, once the mill had entered into
 eration, a system would be established for CARU’s monitoring of the
 ality of the river’s waters throughout the area of the mill site.
 51. Following the meeting of the Ministers for Foreign Affairs, Bielsa
 d Opertti, on 2 March 2004 in Buenos Aires, Argentina’s Ambassador,
r. Sguiglia, and that of Uruguay, Mr. Sader, exchanged drafts with a
  w to committing the Ministers’ oral agreement to writing. These
changes, between March and April 2004, confirm the existence of the
 reement and its content. The last draft exchanged on the subject of the
ntent of the agreement reads as follows :
     “VIII. On 2 March 2004 the Foreign Ministers of Argentina and
   Uruguay reached an understanding with respect to the course of
   action that this matter will take, that is, to have the Uruguayan gov-
   ernment provide the information relating to the construction of the
   plant, and with respect to the operational phase, to have CARU under-
   take the monitoring of the water quality in conformity with its
   Statute.” (Ibid., Vol. IX, Ann. 200.)
52. This text echoes the statements made to the press on 3 March 2004
 th by Mr. Opertti and by Messrs. Bielsa and Sguiglia, as well as, for
e most part, the content of a memorandum of 1 April 2004 sent to the
mbassador, Mr. Volonté Berro (Uruguay) by his Minister-Counsellor,
r. Castillo. This confirms that the Bielsa-Opertti agreement took place
 er the “planning” phase for the mill, to which the obligation to inform
ARU relates under Article 7, paragraph 1, of the Statute. That phase
curred well before the agreement, which itself looked ahead to the
 ure, that is, to the construction and commissioning phases of the mill.
53. The wording of the Bielsa-Opertti agreement was also ratified in
e minutes of CARU’s extraordinary meeting on 15 May 2004 (first

                                                                      238

eeting of the Commission since October 2003) and duly authenticated
  the signatures of the head of the Argentine delegation to CARU,
r. Roberto García Moritán, and the head of the Uruguayan delegation,
r. Walter M. Belvisi, as well as by that of CARU’s Administrative Secre-
 y, Mr. Sergio Chave (Uruguay’s Counter-Memorial, Vol. IV, Ann. 99).
 ose minutes, in their entirety, read as follows :
     “General Agreed Matters :
     I. Both parties pointed out that the environmental protection of
  the Uruguay River is a matter in which both parties share interest
  and sensitivity ; that has materialized in concrete actions pursuant to
  the Statute of the Uruguay River and in the Environmental Protec-
  tion Plan of the Uruguay River signed by both countries on 29 Octo-
  ber 2002 in the city of Paysandú.
     II. On 2 March 2004 the Foreign Ministers of Argentina and Uru-
  guay reached an understanding with respect to the proper course of
  action that this matter will take, that is, to have the Uruguayan Gov-
  ernment provide the information relating to the construction of the
  plant, and with respect to the operational phase of the pulp mill, to
  have CARU undertake the monitoring of water quality in conformity
  with its Statute.
     Specific Agreed-Upon Matters :
     I. Both delegations reasserted that the Foreign Ministers of the
  Republic of Argentina and the Republic of Uruguay agreed on
  2 March 2004 that Uruguay shall communicate the information
  related to the construction of the pulp mill including the Environ-
  mental Management Plan. In this sense, CARU shall receive the
  Environmental Management Plans for the construction and opera-
  tion of the plant provided by the company to the Uruguayan gov-
  ernment via the Uruguayan delegation. Within the framework of its
  competency, CARU will consider those, taking into account the
  terms included in the aforementioned Ministerial Resolution 342/2003,
  particularly those terms expressly established by the Ministry of
  Housing, Land Use Planning and the Environment, such as
  actions which require additional implementation and additional
  assessment by the company before approval of those, formulating its
  observations, comments and suggestions, which shall be transmitted
  to Uruguay, to be dismissed or decided with the company. Once said
  issues are considered, CARU shall again be informed.

     II. In relation to the operational phase, we will proceed to moni-
  tor environmental quality. This monitoring shall be carried out in
  conformity with the provisions of the Statute of the Uruguay River,
  especially Chapter X, Articles 40 to 43. Both delegations agree that in
  view of the scope of the undertaking and its possible effects, CARU

                                                                     239

  shall adopt procedures in conformity with the current minutes. On
  the other hand, the sampling already done by CARU should be
  taken into account as the baseline for the monitoring (these show no
  acute toxicity and compliance of almost 100 per cent with the quality
  standards as compared to the reference values). CARU’s decision to
  add two new water sampling stations in the work area shall make
  monitoring more effective.
     III. Both parties take note of the next meeting of a technical
  nature between national authorities of both countries to exchange
  viewpoints on this issue. Likewise, both parties agreed to invite the
  presidents of both delegations to CARU to attend the meeting.

      Decision :
     Based on the preceding statements and agreements of the Parties,
  it is decided to send all documentation that CARU has in relation to
  the M’Bopicuá project to the Subcommittee of Water Quality and
  Prevention of Environmental Pollution for its consideration, analy-
  sis, and evaluation in accordance with the points mentioned (I and
  II — Specific Agreed-Upon Matter . . .). Likewise, it is agreed to
  request all the information related to the construction phase of the
  plant as agreed by the Uruguayan Foreign Ministry. In this context,
  and in compliance with the Environmental Protection Plan, it is
  agreed to convene a Technical Advisory Committee for the related
  matters.” (Emphasis added.) [Translation by the Registry.] (CARU,
  Minutes 01/04 (15 May 2004) (Excerpt), Uruguay’s Counter-Memo-
  rial, Vol. IV, Ann. 99, pp. 108-110.)

54. There is not a single passage, nor even a single word, in the text of
 s CARU decision that could support the contention that it implied a
 urn to the Commission for purposes of Article 7, paragraph 1, of the
atute of the River Uruguay. On the contrary, CARU gives effect to the
tire content of the agreement entered into by Ministers Bielsa and
pertti on 2 March 2004. Ministerial Resolution 342/2003 cited in para-
aph I of the “Specific Agreed-Upon Matters” of the CARU minutes is
VOTMA’s Ministerial Resolution of 9 October 2003 granting the AAP
r the CMB (ENCE) project.
55. The following comments, made before the wording of the minutes
 s adopted, by the President of Argentina’s delegation to CARU,
r. Moritán, are easily understood. After recalling that Uruguay had
ailed to comply” with the “procedure set forth in Article 7”, he admits,
 wever, that “an important limiting factor in our position is the agree-
ent executed by the Foreign Ministers on 2 March 2004, which was ref-
 nced previously” and “the fact is that we have to go forward on the basis
 the reports that we have and the agreement reached by the Foreign
 nisters” (Uruguay’s Counter-Memorial, Vol. IV, Ann. 99, pp. 18 and 19).

                                                                      240

 56. Therefore, the statements made by the CARU delegates at the time
 ly confirm the scope of the 2 March 2004 agreement between the Min-
ers for Foreign Affairs, which is evidenced by the documents in the
cord. Indeed, the content of the statements of those involved shows
at they were no longer expecting CARU to exercise the general powers
nferred on it under Articles 7 to 11 of the Statute in respect of the
MB (ENCE) plant, rather that it would carry out only certain tasks
 reed on in the Bielsa-Opertti agreement.
 57. Other documents submitted to the Court confirm the scope of the
 reement of 2 March 2004, as explained above. I shall not dwell on this,
cept in respect of three official Argentine documents from the time
hich are of particular note : (1) a statement by the Argentine Ministry of
  reign Affairs in a report on 2004 to the Senate (published in 2005) ;
   a statement by the Argentine Ministry of Foreign Affairs from the
me in a report on 2004 to the Chamber of Deputies ; and (3) a statement
 the 2004 Annual Report on the State of the Nation, prepared by the
 fice of Argentina’s President.

58. In the first of these documents (already cited in para. 48 above),
e Argentine Ministry of Foreign Affairs states that :
      “On 2 March 2004, the Foreign Ministers of Argentina and Uru-
   guay reached an understanding on the course of action to give to
   this subject. That is, for the Government of Uruguay to facilitate
   information relative to the construction of the plant, and in regard
   to the operational phase, instruct the CARU to proceed to carry out
   a monitoring of the water quality of the Uruguay River in conform-
   ity with the provisions of the Statute for the River Uruguay, espe-
   cially its Chapter X, Articles 40 to 43. This decision coincides with
   the request of the Governor of Entre Ríos Province . . . The under-
   standing of the Foreign Ministers, the note from the Governor of
   Entre Ríos and the report of the technical experts coincide in that
   the CARU should concentrate its activity on the subject of mecha-
   nisms of control.” [Translation by the Registry.] (Uruguay’s Rejoin-
   der, Vol. II, Ann. R14, p. 617.)
59. The statement by the Argentine Ministry of Foreign Affairs in a
port presented to the Chamber of Deputies for 2004 reads as follows :

      “In June of that same year [2004], a Bilateral Agreement was
   signed through which Argentina’s Government put an end to the
   controversy.
      Said agreement respects, on the one hand, the Uruguayan national
   character of the project, and on the other hand, the regulations in
   force that regulate the waters of the Uruguay River through the
   CARU.

                                                                      241

     Likewise, it includes a work methodology for the three phases of
  construction of the project : the project, the construction and the
  operation.
     Thus, inclusive control procedures were carried out on the Uruguay
  River which means they will continue after the plants are in opera-
  tion.
     Controls on both plants will be more extensive than those our own
  country has on its plants on the Paraná River, which were neverthe-
  less accepted by Uruguay (the technologies that the province of
  Entre Ríos questions Uruguay about are the same ones that are used
  in our country).” (Uruguay’s Counter-Memorial, Vol. III, Ann. 46 ;
  emphasis added.)

60. According to the statement made in Argentina’s 2004 Annual
port on the State of the Nation prepared by the Head of the Argentine
binet Office (dated 1 March 2005) :
     “That same month [i.e., June 2004 (sic)], both countries signed a
  bilateral agreement which put an end to the controversy over the
  pulp mill installation in Fray Bentos.
     This agreement respects, on the one hand, the Uruguayan and
  national character of the work, which was never under discussion,
  and on the other hand, the regulation in force that regulates the
  Uruguay River waters through the CARU.
     It also provides for a working procedure for the three phases of
  construction of the work : project, construction and operation.”
  (Ibid., Vol. III, Ann. 48, p. 28.)
adds further on :
     “In view of the ‘specific agreements of both Delegations at CARU’
  regarding the possible installation of pulp mill plants on the Uruguay
  River bank, a ‘Monitoring Plan for Environmental Quality of the
  Uruguay River in the Areas of the Pulp Mill Plants’ was designed,
  which together with the ‘Plan of Environmental Protection of the
  Uruguay River’ helps to maintain water quality. The ‘water quality’
  standards were also reviewed and updated, considering they remain
  to be included in the Digest of Uses of the Uruguay River.” (Ibid.,
  Vol. III, Ann. 48, p. 28 ; emphasis added.)
61. This text also confirms Uruguay’s theory that the procedure agreed
  on 2 March 2004 by Ministers Bielsa and Opertti for the ENCE
oject was also later applied to the Botnia project by the two Govern-
ents. Argentina knew of the Botnia project by November 2003 at the
 est, when its official representatives had their first meeting with Botnia
presentatives in Buenos Aires, and CARU itself learned of it
 April 2004, when it first met representatives of the company. The joint
ess release of 31 May 2005 on the occasion of the GTAN’s establish-
ent also makes reference to “the cellulose plants that are being con-

                                                                       242

 ucted in the Eastern Republic of Uruguay” (see below). CARU and its
 bcommittee on Water Quality and Prevention of Pollution did the
me. For example, PROCEL’s full title is “Plan for Monitoring Water
uality of the River Uruguay in the Area of the Pulp Mills” (emphasis
 ded).

62. The Court’s Judgment accepts that the understanding of
March 2004 is a procedure replacing that under the Statute, but it dis-
 sses its application in the present case on the — to me, rather surpris-
g — basis that Uruguay failed to adhere to it. In point of fact, in
ragraphs 129 and 131 of the Judgment, the Court states that the infor-
ation which Uruguay was obliged under the “understanding” to trans-
 t to CARU was never transmitted. Therefore, the Court concluded
at it could not accept Uruguay’s contention that the “understanding”
 t an end to its dispute with Argentina in respect of the CMB (ENCE)
 ll, concerning the implementation of the procedure laid down by Arti-
  7 of the Statute. The Court further notes that, when the understand-
g was drawn up, it covered only the CMB (ENCE) project ; it rejects
 uguay’s contention that the scope of the understanding was later
tended by the parties to the Orion (Botnia) project, with the argument
at reference to “the two mills” is made only as from July 2004 in the
ntext of the PROCEL plan. However, the Court adds, that plan con-
rns only the measures to monitor the environmental quality of the river
 ters, not the procedures under Article 7 of the 1975 Statute. And, thus,
e Court concludes that since the “understanding” was never applied by
 uguay, it cannot be considered as a derogation from the procedural
 ligations laid down by Article 7 of the 1975 Statute.
63. To my great regret, I do not agree with that conclusion. As far as
onitoring is concerned, the agreement, with the consent of both delega-
 ns to the Commission, was fully implemented by CARU which adopted
e PROCEL plan on 12 November 2004 and continued to implement it
 til the withdrawal of the Argentine delegates. As for the transmission
  Uruguay of the technical information relating to the construction of
e CMB (ENCE) mill, Uruguay never had the chance to do so because
e mill was not built. The only PGA in existence for this mill is for the
emoval of vegetation and earth moving”, and dates from 28 Novem-
r 2005. There are no others for the construction of the mill, eventually
andoned by ENCE, in Fray Bentos.

64. In the case of Orion (Botnia), construction works for the mill on
e site unfolded after the official end of direct negotiations in the
TAN, which the Judgment fixes at 3 February 2006 (para. 157). Further-
ore, Uruguay transmitted to CARU by facsimile on 6 December
04 “the text of the public file for the Kraft cellulose plant project,
plication for initial environmental authorization [AAP] filed by Bot-
a S.A.” (Uruguay’s Counter-Memorial, Vol. IV, Ann. 111, CARU,
inutes 09/04 (10 December 2004)). Uruguay therefore sent this infor-

                                                                     243

ation to CARU before the AAP was granted on 14 February 2005. In
e documents submitted to the Court, there are references to the appli-
tion of the understanding to the “two mills”, not only in the CARU
 cuments on the PROCEL plan, but also in official Argentine docu-
ents such as the statement by the Argentine Ministry of Foreign Affairs
 a report presented to the Chamber of Deputies for 2004 (see para-
aph 59 above).

65. The understanding of 2 March 2004 was performed as far as it was
ysically possible to do so (impossibilium nulla obligatio est).

. The Presidents’ Agreement of 5 May 2005 Establishing the GTAN
66. In a diplomatic Note of 12 January 2006 to Uruguay’s ambassador
 Argentina, the Argentine Ministry of Foreign Affairs described the cir-
mstances leading up to the creation of the GTAN as follows : “The
 k of agreement within the Administrative Commission of the River
 uguay (CARU) . . . led the Governments of both countries to deal
th the question directly and to establish a High Level Technical Group
 TAN).” (Uruguay’s Counter-Memorial, Vol. III, Ann. 59.) See also
e 12 February 2006 address by Argentina’s Minister for Foreign Affairs,
r. Taiana, to the Foreign Affairs Committee of the Chamber of Depu-
 s annexed to the Application instituting proceedings in the present
se.
67. There were also political motives behind the establishment of the
TAN. There was growing opposition to the construction of the two
 lls in Fray Bentos among the inhabitants of the Argentine province of
 tre Ríos. Mass demonstrations had taken place and international
ads and bridges over the River Uruguay had been blockaded, notably
e General San Martín bridge, which was closed to traffic as a result of
e actions promoted by the “asambleistas” movement of Gualeguaychú.
n the other side, on 1 March 2005, a new Uruguayan Government took
fice following the inauguration of President Tabaré Vázquez.

 68. It should be noted that the Presidents’ agreement of 5 May 2005
 s concluded on Argentina’s initiative. In a letter also dated 5 May 2005,
 gentina’s Minister for Foreign Affairs, Mr. Bielsa, expressly proposed
 ect discussions on the two mills (ENCE and Botnia) to his Uruguayan
unterpart, Mr. Gargano (Uruguay’s Rejoinder, Vol. II, Ann. R15). It
 s thus once again Argentina which suggested that the issue of the
 per pulp mills be handled by the two Governments outside CARU.
owever, the Judgment does not draw any conclusions from this on
hether or not Uruguay’s conduct at the time accorded with its
 ligations in the matter, in view of the requirements of the prior
nsultation process under the Statute of the River Uruguay and the
elsa-Opertti understanding of 2 March 2004, which was still in force

                                                                      244

en the outgoing Uruguayan Government issued the AAP for Botnia
14 February 2005.

69. In his letter of 5 May 2005 to the Uruguayan Minister, Mr. Gargano,
e Argentine Minister, Mr. Bielsa, wrote :
     “I have the pleasure of addressing this to you with respect to the
  projected installation of two plants for the production of cellulose in
  the area of Fray Bentos, in front of the Argentinean city of Guale-
  guaychú, in the province of Entre Ríos.
     In this respect I must convey, once again, the great concern that
  exists amongst the population and the authorities from the said
  province — concern that the national Government takes as its
  own — as a consequence of the environmental impact that the
  operations of the said plants may produce.
     Without prejudice of the water quality control and monitoring
  procedures by CARU, this situation, due to its potential seriousness,
  requires a more direct intervention of the competent environmental
  authorities, with the cooperation of specialized academic institu-
  tions.”
his letter from Minister Bielsa goes on to convey to his Uruguayan
unterpart the requests made by the government of the Argentine prov-
ce of Entre Ríos, including a request for reconsideration of the location
 the plants.)
70. The text of the agreement between Presidents Vázquez and
 rchner establishing the High-Level Technical Group (GTAN) was the
bject of a joint Argentine-Uruguayan press release dated 31 May 2005,
 proved by the Ministers for Foreign Affairs of the two countries. It
ads as follows :
     “In conformity with what was agreed to by the Presidents of
  Argentina and Uruguay, the Foreign Ministries of both of our coun-
  tries constitute, under their supervision, a Group of Technical
  Experts for complementary studies and analysis, exchange of infor-
  mation and follow-up on the effects that the operation of the cellu-
  lose plants that are being constructed in the Eastern Republic of
  Uruguay will have on the ecosystem of the shared Uruguay River.

    This Group . . . is to produce an initial report within a period of
  180 days.” (Paragraph 132 of the Judgment.)
71. In light of this text and of the letter from Mr. Bielsa to Mr. Gar-
no, there can be no doubt that on 5 May 2005 the Parties agreed bet-
en themselves to dispense with the procedures set out in Articles 7 to
 of the Statute in favour of immediate “direct negotiations” in the
TAN ; negotiations provided for in Article 12 of the Statute, as Argen-
a expressly stated in its diplomatic Note of 14 December 2005 and

                                                                     245

hich paragraph 4 of its Application instituting these proceedings
nfirms. Moreover, in the third paragraph of Mr. Bielsa’s letter to Mr.
argano, it is stated that the “more direct intervention” of the Govern-
ents, sought at the time by Argentina and agreed to by Uruguay, would
ke place “[w]ithout prejudice of the water quality control and monitor-
g procedures by CARU”, which had been defined in the agreement of
March 2004.
 72. It follows from the Presidents’ agreement of 5 May 2005 that there
  s absolutely no question at that time of either Argentina or Uruguay
considering the procedure agreed to by the Ministers for Foreign
 fairs of the two countries in March 2004 for CMB (ENCE) and later
tended to Orion (Botnia). According to the text of the Presidents’
 reement, the points which were still outstanding between the Parties
 d which were supposed to be considered by them directly within the
TAN concerned solely the effects that “the operation” of the paper pulp
 lls (the two mills) being constructed in the Eastern Republic of Uru-
 ay would have on the ecosystem of the river. For me, the Applicant’s
ote of 14 December 2005 registering the failure of the direct negotia-
 ns in the GTAN is conclusive proof of this, since, having noted the
  k of agreement in the GTAN on the points outstanding, Argentina
en views the matter in the context of Article 12 of the Statute of the
 ver Uruguay yet without denouncing the agreement of 2 March 2004.

 73. The Judgment accepts that the press release of 31 May 2005
presses agreement between the two States, but only in order to create a
gotiating framework — the GTAN — to study, analyse and exchange
 ormation on the effects that the operation of the cellulose plants that
 re being constructed in the Eastern Republic of Uruguay could have
  the ecosystem of the river, with the group having to produce an initial
port within a period of 180 days (paragraph 138 of the Judgment). The
ourt also acknowledges that the GTAN was created with the aim of
abling the negotiations provided for in Article 12 of the Statute to take
ace (paragraph 139 of the Judgment).
 74. The Judgment goes on to conclude : (1) that the agreement con-
 ned in the press release of 31 May 2005 cannot be interpreted as
pressing the agreement of the Parties to derogate from the other pro-
dural obligations laid down by the Statute, in particular Article 7 ; and
   that, in this agreement, Argentina did not give up the procedural
 hts which it clearly and unequivocally holds under the 1975 Statute, or
e possibility of invoking Uruguay’s responsibility for any breach of
ose rights (paragraphs 140 and 141 of the Judgment). I do not agree
th those conclusions, because they take no account of the agreement of
March 2004 between the Ministers for Foreign Affairs which was still
  force on the date of conclusion of the Presidents’ agreement of
May 2005. Further, the agreement of 5 May 2005 did not put an end to
e agreement of 2 March 2004 ; quite the contrary, it confirmed its
ope.

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75. The agreement of 2 March 2004 was not called into question either
   the text or the spirit of the Presidents’ agreement establishing the
TAN, or by the terms of the press release of 31 May 2005. Argentina
 s not proved, to my satisfaction, that by concluding the Presidents’
reement, Uruguay supposedly waived the rights which belonged to it
 der the March 2004 agreement. If that had been the case, what would
  have received in return : The interpretation according to which
e May 2005 agreement granted Argentina considerable rights of super-
 ion over the construction of the mills (rights far greater than what is
ovided for in the relevant articles of the 1975 Statute), without giving
 uguay anything in exchange is not tenable in light of the facts. Nor
 es the letter from Minister Bielsa of 5 May 2005, which, by virtue of its
ntent, forms part of the “travaux préparatoires” of the Presidents’
reement, confirm the findings in the Judgment on this matter. For me,
cta sunt servanda, with the associated good faith, governs the relations
tween the Parties as regards the interpretation and application of the
ovisions of the 1975 Statute, but so too does the Ministers’ agreement
 2 March 2004, the existence and scope of which are in effect confirmed
  the Presidents’ agreement of 5 May 2005.
76. The Court also notes in its Judgment that the agreement docu-
ented in the press release of 31 May 2005, in referring to “the cellulose
ants that are being constructed in the Eastern Republic of Uruguay”, is
  ting a simple fact and cannot be interpreted, as Uruguay claims, as an
ceptance of their construction by Argentina (paragraph 142 of the
dgment). Regrettably, I cannot endorse the Court’s conclusion, because
e phrase in question goes far beyond stating a simple fact. In my opin-
n, it states not just a fact, but a fact that reflects a legal relationship
tween the Parties deriving from both the 1975 Statute and the under-
  nding of 2 March 2004, as well as from the Presidents’ agreement of
May 2005.

        3. The Procedure for the Pulp Mills in Fray Bentos
              Established by the Parties’ Agreements
77. It follows from the scope and substance of the agreements of
March 2004 and 5 May 2005 that the Parties decided upon an ad hoc
ocedure to deal with the matter of the pulp mills on the Uruguayan
nk of the River Uruguay at Fray Bentos. This procedure retained the
stem of direct negotiations of the 1975 Statute and, should the Parties
 l to reach an agreement, the reference for judicial settlement of the dis-
 te, at the request of one or other of them, as provided for in Articles 12
d 60 of the Statute of the River Uruguay. However, the ad hoc proce-
 re dispensed with the procedural methods, under Articles 7 to 11 of the
atute, relating to the carrying out of works.
78. CARU’s role in the procedure decided upon by the Parties was
fined by the agreement of 2 March 2004 and clearly explained in the

                                                                       247

ommission’s minutes approving that agreement (points (I) and (II) of
e “Specific Agreed-Upon Matters” cited in para. 53 above). It follows
at, in the present case, it is not for the Court to judge the conduct of the
 rties in respect of the Statute’s procedures in relation to CARU, which,
 my opinion, are not applicable in this case. In contrast, on the matter
 principle, I do not consider that the expression “through the Commis-
 n” contained in the Statute must be construed as ruling out exchanges
tween Heads of State or Foreign Ministers, or through the normal dip-
matic channels. It is absurd to imagine that the States intended to
prive themselves of such resources when they concluded the 1975 Statute.
  fact, interpretations to the contrary embellish the text, as the Stat-
e does not stipulate that the Parties may communicate through CARU
 clusively. In any case, according to the information submitted to the
ourt, on the one hand, Uruguay transmitted information on the planned
 lls directly to Argentina and Argentina agreed to receive that informa-
 n and, on the other, Argentina requested information on the mills
 ectly from Uruguay and Uruguay agreed to transmit it to Argentina.
 is clear, therefore, that in the present case the Parties agreed to an
 ernative procedure for transmitting information to that of the Statute,
hich states that CARU should act as an intermediary.

79. On the other hand, the procedure adopted by the Parties confers
 wers on CARU in this area, particularly regarding the protection and
eservation of the aquatic environment. The agreement of 2 March 2004
d indeed signify a return to the Commission, although not for the pur-
 ses of Articles 7 to 11 of the Statute, but for two tasks new to the Stat-
e’s procedural provisions. Those tasks relate to the “construction of the
ll” and “the operational phase of the mill”.

80. As regards the “construction of the mill”, Uruguay was to transmit
  CARU the environmental management plan (PGA) relating to the
nstruction and operation of the ENCE plant, to enable the Commis-
 n to formulate its observations, comments and suggestions “which
all be transmitted to Uruguay, to be dismissed or decided with the
mpany”. The 1975 Statute does not give CARU procedural powers in
 pect of the operational phase of a national industrial project. By con-
 st, the agreements reached by the parties tasked the Commission with
onitoring the environmental quality of the river in accordance with the
ovisions of the Statute, and Chapter X on “pollution” (Arts. 40-43) in
rticular. CARU successfully completed that task by drawing up and
plementing a “monitoring plan” within the framework of the Commis-
 n to check the quality of the waters of the river in the area of the pulp
lls (PROCEL).
81. Argentina’s agreement, in March 2004, to the actual principle of
 ilding the mills is fully confirmed by the 2005 agreement setting up the
TAN, which was concerned only with the effects of the operation of the
lls on the ecosystem of the river. It is true that Argentina then tried

                                                                        248

 rtially to reopen the question of the location of the mills (letter from
r. Bielsa to Mr. Gargano of 5 May 2005, Uruguay’s Rejoinder, Vol. II,
nn. R15), but that request met with a flat refusal from Uruguay, in all
 elihood on the basis of what had been decided by the Parties in the
March 2004 agreement. The 2005 agreement mandated the GTAN, and
 t CARU, to carry out “complementary studies and analysis, exchange
  information and follow up” on the effects that the operation of the
 lulose plants that are being constructed on the River Uruguay will
 ve on the ecosystem of the River Uruguay. The issue was no longer the
anning or construction of the mills, but the effects of their operation.

82. In the procedure laid down in the Parties’ agreements, the consul-
 ion procedures between the Parties concerning the pulp mills in Fray
 ntos were far more inclined to favour protection of Argentina’s inter-
 s in the matter than were the procedural methods under Articles 7
 11 of the 1975 Statute. The Statute makes no mention of visits or sum-
 t meetings of Heads of State and/or Ministers for Foreign Affairs ; nor
 es it mention the creation of a high-level technical group, such as the
TAN, made up of diplomats, lawyers and experts from the two coun-
es, which met from 3 August 2005 and which discussed the two pro-
 sed mills (ENCE had yet to abandon the plan to build the CMB
ant). It was thus by these means, the result of diplomacy, that the aim
 rsued by “notify[ing] the other party”, laid down by Article 7, para-
aph 2, of the Statute, was achieved by the Parties in the present case.

83. Under the procedure agreed, it was not for Argentina to evaluate
one, or with a perfunctory knowledge of the main features of the
ants, either the technical data of the mills and the effects of their opera-
 n, or the possible significant harm that they could cause to Argentina
  to the River Uruguay as a shared natural resource : it could rely on
 uguay’s collaboration.
84. From the earliest stages in the ENCE project, Uruguay transmit-
d to Argentina all of the documentation it then possessed on the
oject. Argentina acknowledged that the information on the ENCE mill
 s adequate, as its experts were able to draft their report of Febru-
y 2004 on the basis of that information. Furthermore, during the
cond half of 2005, within the GTAN framework, Uruguay provided
 gentina with a great deal more information on that mill and yet more,
 d more detailed, information on the Botnia mill than it had done for
e ENCE mill in both 2004 and 2005.
85. During the meetings of the GTAN, Uruguay supplied Argentina
th no fewer than 36 new documents, including DINAMA’s entire
000-plus-page file on Botnia. According to the information contained
 the case file, Uruguay responded to Argentina’s requests for informa-
 n, in the GTAN, even though it had sometimes to undertake research
 order to meet them. In any event, during the oral proceedings, the

                                                                        249

pplicant did not complain of any lack of information. It therefore
 pears that the Respondent complied in full with its legal obligation to
ep the other State informed (information sharing obligation).

86. It should also be pointed out that in the procedure agreed to by the
 rties, Argentina was not subject to the time constraints required by the
atute with its system of time-limits in Articles 7 and 8. Argentina was
 t, for example, limited by the period of 180 days in which to notify the
her Party that the implementation of the work or programme of opera-
 ns could cause significant damage to the navigation, the régime of the
 er or the quality of its waters. Over a year, i.e., more than double the
riod of six months laid down by Article 8 of the Statute, elapsed
tween March 2004 and May 2005.
87. In sum, whenever the Parties agree to seek mutually acceptable
 utions on the basis of direct consultations, in order to resolve a dis-
reement or dispute relating to the interpretation or application of the
75 Statute, it cannot be claimed that any failure to apply the relevant
me-limits under the Statute constitutes an internationally wrongful act.

88. Finally, it must be borne in mind that, within the framework of the
nciliation procedure provided for in Chapter XIV of the 1975 Statute,
ny dispute which may arise between the Parties concerning the river”
 ly has to be examined by CARU at the proposal of either Party, and if
e Commission is unable to arrive at an agreement within 120 days, the
o parties shall attempt to resolve the issue by direct negotiations
rts. 58 and 59 of the Statute). In the present case, neither Party asked
ARU to resolve their dispute on the interpretation and application of
e provisions of Articles 7 to 12 of the Statute by means of conciliation.
 e Parties proceeded to “direct negotiations” without the Commission’s
 ermediation, creating for this purpose an ad hoc framework for nego-
 tion, i.e., the GTAN.

          V. URUGUAY’S OBLIGATIONS DURING THE PERIOD
                   OF DIRECT NEGOTIATIONS

89. As indicated in the introduction to this opinion, I fully support
 th the Court’s conclusion rejecting the “no construction obligation”
 d to be borne by Uruguay between the end of the direct negotiation
riod within the GTAN and the decision of the Court, and the reasons
r its rejection : as the Judgment states, that supposed obligation “is not
pressly laid down by the 1975 Statute and does not follow from its pro-
 ions” (paragraph 154 of the Judgment).

90. I would only add here that the supposed obligation does not fol-
w from general international law either, since, as the arbitral award in
e Lac Lanoux case so aptly put it :

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      “To admit that jurisdiction in a certain field can no longer be exer-
   cised except on the condition of, or by way of, an agreement between
   two States, is to place an essential restriction on the sovereignty of a
   State, and such restriction could only be admitted if there were clear
   and convincing evidence. Without doubt, international practice does
   reveal some special cases . . . But these cases are exceptional, and
   international judicial decisions are slow to recognize their existence,
   especially when they impair the territorial sovereignty of a State, as
   would be the case in the present matter.
      In effect, in order to appreciate in its essence the necessity for
   prior agreement, one must envisage the hypothesis in which the
   interested States cannot reach agreement. In such case, it must be
   admitted that the State which is normally competent has lost its
   right to act alone as a result of the unconditional and arbitrary
   opposition of another State. This amounts to admitting a ‘right of
   assent’, a ‘right of veto’, which at the discretion of one State para-
   lyses the exercise of the territorial jurisdiction of another.” (United
   Nations, Reports of International Arbitral Decisions, Vol. XII,
   p. 306, para. 11 ; emphasis added.)

 91. However, I disagree with the Judgment on establishing whether
 uguay’s conduct during the period of direct negotiations within the
TAN was in accordance with its legal obligations to Argentina, in light
 the principle of the obligation to negotiate. I am in no doubt whatever
at there is such an obligation under international law and it is also my
 derstanding that, given its significance in international relations, the
ourt must be exacting in ensuring that it is met, because reciprocal trust
 an inherent condition of international co-operation (Nuclear Tests
 ustralia v. France), Judgment, I.C.J. Reports 1974, p. 268, para. 46).
 erefore, it is not the existence or importance of this obligation with
hich I disagree, but how the Judgment has applied it to the circum-
 nces and facts of the case.

92. Thus, I agree that, during the negotiations within the GTAN, Uru-
 ay was obliged — as indeed was Argentina — to take part in good
 th and with an open mind, so as to ensure that the negotiations were
eaningful, and to be willing to take reasonable account of the other
 rty’s views, without however being obliged to reach an agreement
cause, under international law, a commitment to negotiate does not
 ply an obligation to agree. The GTAN was to produce a report within
0 days and, having begun its work on 3 August 2005, in principle Uru-
 ay would have been obliged to comply with the said obligation until
e end of the GTAN negotiations, fixed in the Judgment at 3 Febru-
y 2006.
93. It is possible, however, for the consultations between the Parties to
come deadlocked before the period allowed for direct negotiations has
pired — six months in the present case, as I have just said. In such

                                                                       251

 cumstances, I believe it to be contrary to the sound administration of
 tice to oblige the Parties to wait until the official time-limit has elapsed
fore they are freed of the obligation. Indeed, in situations like this, I
lieve, in principle, that neither State is obliged to take an action which
clearly futile and pointless, or which has already proved to be in vain
 e the separate opinion of Judge Tanaka in Barcelona Traction, Light
d Power Company, Limited (Belgium v. Spain), Second Phase, Judg-
 nt, I.C.J. Reports 1970, p. 145).
94. My first observation therefore concerns the issue of the temporal
ope of the obligation in this case, since a similar situation arose in the
esent case. The direct negotiations within the GTAN reached a dead-
ck towards the end of November 2005, long before 3 February 2006.
 gentina’s diplomatic Notes of 14 December 2005, 26 December 2005
 d 12 January 2006, which form part of the record (Argentina’s Memo-
 l, Vol. II, Anns. 27, 28 and 30), confirm the deadlock the GTAN had
ached.

95. The diplomatic Note of 14 December 2005, signed by Ambas-
dor Moritán in his capacity as Secretary for Foreign Affairs at the
inistry of Foreign Affairs, International Trade and Worship, concludes
 follows :
    “The Government of the Argentine Republic concludes that, upon
  the parties having failed to reach agreement . . . [‘no habiendo lle-
  gado las Partes a un acuerdo’ in the original note in Spanish], as
  specified by Article 12 of the River Uruguay Statute, this paves the
  way for the procedure provided for in Chapter XV of said Statute.

    Consequently, the Government of the Argentine Republic hereby
  notifies the Uruguayan Government of the following :

  (a) a dispute has arisen in connection with the application and
      interpretation of the Statute of the River Uruguay ; and
  (b) the direct negotiations between both Governments, referred to
      by Article 60 of the Statute, have been taking place since
      3 August 2005 (the date of the first GTAN meeting) in respect
      of the dispute arising out of the unilateral authorizations for
      construction of the said industrial plants ; and since the date
      hereof as regards the dispute arising out of the unilateral
      authorization in respect of the port, evidenced in the record of
      the CARU plenary session of 14 October 2005 and referred to
      in the Note by the President of the Argentine Delegation before
      the Commission to the Uruguayan counterpart, submitted at
      the plenary session of 17 November.” (Argentina’s Memorial,
      Vol. II, Ann. 27, p. 432.)
96. As regards the “direct negotiations” referred to in Article 60 of the
atute, this Argentine diplomatic Note draws a distinction between

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ose relating to the dispute over the construction of the CMB and Orion
 lls and those concerning the dispute over the construction of the Bot-
a port, which are said to be taking place “since the date hereof”, that is,
  December 2005, the date of the diplomatic Note. This was confirmed
   12 February 2006 by Argentina’s Minister for Foreign Affairs,
r. Taiana, when he explained to the Foreign Affairs Committee of the
 gentine Chamber of Deputies that :

   “in relation with the port construction project, the purpose of the
   note [of 14 December 2005] was to determine [that] the day of presen-
   tation to Uruguay would be the start date from which to compute
   the period in which to carry out direct negotiations” (Argentina’s
   Application instituting proceedings, Ann. III, p. 19 (Spanish text)
   and p. 17 (English text)).
 97. My second observation concerns the substantive scope of the obli-
 tion. I do not agree with the findings of the Court on this matter,
cause the Judgment does not distinguish between the various categories
  “administrative acts granting environmental authorization of a work”
 d “the authorizations or plans for the construction of the work itself”,
hich is essential in my view. On the other hand, the Judgment treats
tivities or works of “a preparatory character” to the work as though
ey were the “construction works” prohibited by the obligation. I am
  appointed that the sound legal rule on the subject which the Court
  ntified in the case concerning Gabčíkovo-Nagymaros Project (Hungary/
ovakia) was not applied to the present case : as the Court stated at
e time :
      “A wrongful act or offence is frequently preceded by preparatory
   actions which are not to be confused with the act or offence itself. It
   is as well to distinguish between the actual commission of a wrongful
   act (whether instantaneous or continuous) and the conduct prior to
   that act which is of a preparatory character and which ‘does not
   qualify as a wrongful act’.” (Judgment, I.C.J. Reports 1997, p. 54,
   para. 79.)
98. In fact, some of Uruguay’s actions condemned in the Judgment
ating to the CMB (ENCE) and Orion (Botnia) projects are of a “pre-
ratory” character, as opposed to the actual construction works for the
lls. This is true, for example, of the removal of vegetation and earth
oving for ENCE (Environmental Management Plan (PGA) of
 November 2005), which is the only authorization granted by Uruguay
 ENCE during the period in question and which was modified after the
TAN had come to an end, on 22 March 2006. In the case of Botnia,
ere is the removal of vegetation and earth moving (PGA of
 April 2005) before the GTAN, and the construction of concrete foun-
tions and the chimney (PGA of 22 August 2005) during the GTAN. In
dition, there is the resolution dated 5 July 2005, with which the com-

                                                                       253

tent Uruguayan authorities authorized Botnia to make use of the river
d for the construction of a port adjacent to the Orion mill for the
clusive use of the mill, as well as a PGA relating to the approval of the
 lan de Gestión Ambiental de las Obras Civiles Terrestres Planta de
 lulosa Botnia Fray Bentos PGAV Version”, dated 18 January 2006,
at is, after Argentina’s diplomatic Note of 14 December 2005 cited in
 ragraph 95 above.
 99. All that remains, therefore, is the issue of the authorization for the
nstruction of the Botnia port. This merits a moment’s attention because
was Argentina and not Uruguay which prevented CARU from carry-
g out the role attributed to it under the 1975 Statute in this case. It is
ue that the initial environmental authorization (AAP) for the Orion
 otnia) mill of 14 February 2005 granted by Uruguay was for both the
 per pulp mill and its port terminal, and also that the Uruguayan reso-
 ion of 5 July 2005, mentioned earlier, authorized Botnia to make use
 the river bed for the construction of the terminal. However, approxi-
ately one month after this resolution, on 3 August 2005, the Argentine
 d Uruguayan delegations agreed, at the first GTAN meeting, to refer
e Botnia port terminal project to CARU without condition for prelimi-
 ry review pursuant to Article 7, paragraph 1, of the Statute.

100. Following this understanding, Uruguay transmitted the Uru-
 ayan resolution of 5 July 2005 on the plans for the Botnia port to
ARU by diplomatic Note of 15 August 2005 from the President of the
 uguayan delegation to CARU to the President of the Argentine del-
ation to CARU, in accordance with Article 7 of the Statute (“en
mplimiento del Art. 7 del Estatuto” in the original Spanish). Then, on
  October 2005, Uruguay supplied CARU with the additional informa-
 n on the project requested by the Argentine delegation. Thus, by
reement of the Parties, the Botnia port terminal project was not the
bject of “direct negotiations” within the GTAN. Nor was it examined
  CARU for the purposes of Article 7 of the Statute, because Argentina
ocked the preliminary review of the project by the Commission on the
 sis of Uruguay’s refusal to halt construction works on the port. Argen-
 a’s decision to do so was communicated at the CARU meeting of
  October 2005 and reiterated in a Note of 17 November 2005 addressed
 the President of the Uruguayan delegation to CARU.
101. In my opinion, it follows that the dispute concerning the port
 minal of the Orion (Botnia) mill, which is in effect included in the
pplication instituting proceedings of 4 May 2006, is inadmissible, because
e procedural steps set out in Articles 7 et seq. of the Statute were not
 lowed and because this dispute was not the subject of “direct
gotiations”, in the GTAN or elsewhere, a prerequisite under Article 60
 the Statute to be able to seise the Court of any dispute concerning the
 erpretation or application of the Statute of the River Uruguay. Fur-
ermore, nor was the 180-day period, which Article 12 of the Statute
 erves for “direct negotiations”, respected ; in point of fact, only some

                                                                       254

 1 days elapsed between Argentina’s diplomatic Note of 14 Decem-
 r 2005 and 4 May 2006, when it filed its Application instituting pro-
edings (see para. 96 above).
 102. As for the substance, it should be pointed out that, in 2001, Uru-
 ay informed CARU of the plan to build the M’Bopicuá port after its
AP had been granted ; the two delegations were nevertheless able to
 me quickly to the conclusion, within the framework of CARU, that the
 rt in question, much larger than the Botnia port, did not represent a
reat to navigation, the régime of the river or the quality of its waters. It
ould appear therefore that objectively there is no dispute between the
 rties on the environmental viability of the Botnia port. Also, between
 79 and 2004, Argentina authorized the construction and restoration of
 rts on its bank of the river in Fédération, Concordia, Puerto Yuqueri
 d Concepcion del Uruguay, without informing CARU and without
 tifying or consulting Uruguay. In sum, the Botnia port is not of suffi-
 nt scope (“de entidad suficiente”) to fall within the provisions of Arti-
  7 of the Statute.
 103. In view of the foregoing, I do not share the findings of the Court
  Uruguay’s failure to comply with its obligation to negotiate laid down
  Article 12 of the Statute (paragraph 149 of the Judgment). All the
ore so since it is my belief that in the present case the agreements
ached between the Parties on 2 March 2004 and 5 May 2005 derogated
om Uruguay’s obligations to inform and notify under Article 7 of the
 75 Statute. However, given that the breaches found in the Judgment to
 ve been committed by Uruguay are in themselves of a procedural
 ture and minor in gravity — in the sense that not one constitutes a
material breach” — I concur with the Judgment that “satisfaction” is
e appropriate redress under international law.

                         GENERAL CONCLUSION

104. Bearing in mind all the preceding considerations, I cannot endorse
e findings of the Court concerning the breach by Uruguay of its pro-
dural obligations towards Argentina, which is the subject of the present
se. All the more so since it is my belief that in the present case the
reements reached between the Parties on 2 March 2004 and 5 May 2005
rogated from Uruguay’s obligations to inform and notify under Arti-
 7 of the 1975 Statute ; it is also my belief that Uruguay did not breach
 obligation to negotiate laid down by Article 12 of the Statute either.
 at is why I voted against point 1 of the operative clause of the Judg-
ent.

                               (Signed) Santiago TORRES BERNÁRDEZ.

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