      DISSENTING OPINION OF JUDGE AD HOC VINUESA

   1. Although I agree with the first paragraph of the dispositive concern-
 ng Uruguay’s breaches of procedural obligations under the 1975 Statute,
I do not share the views of the majority concerning : (1) the relationship
between procedural obligations and substantial obligations ; (2) the non-
existence of a “no construction obligation” once the parties to the
1975 Statute failed to reach an agreement under Article 12 ; and (3) and
 he reasoning behind the conclusion that satisfaction is a proper means of
reparation. For the reasons stated below (see paras. 40 to 99), I fully disa-
gree with the second paragraph of the dispositive.

            A. ISSUES RELATED TO PROCEDURAL OBLIGATIONS
          I. The Relationship between Procedural Obligations
                     and Substantive Obligations
  2. I disagree with the majority in assuming that the dispute concerning
substantive obligations is temporally restricted as to only refer to “whether
Uruguay has complied with its substantive obligations under the
1975 Statute since the commissioning of the Orion (Botnia) mill in November
2007” (Judgment, para. 46). Substantive obligations under the Statute
could have been, and in fact were, breached by Uruguay before the com-
missioning of the Orion (Botnia) mill.

   3. The authorization of the location of the ENCE and Orion (Botnia)
mills in a sensitive, vulnerable and environmentally dynamic site is a
breach of the substantive obligations prescribed by the Statute. This vio-
 ation, committed before the commissioning of the Orion (Botnia) mill,
breached Uruguay’s substantive obligations independently of Uruguay’s
procedural obligation breaches.
   4. I also disagree with the majority’s finding that “the procedural obli-
gations are distinct from substantive obligations laid down in the
1975 Statute . . .” (ibid., para. 271). Instead, I strongly support the idea
 hat the procedural obligations are directly interrelated with the substan-
 ive obligations. The Statute does not distinguish between different legal
effects for each category of obligations. Moreover, the object and pur-
pose of the 1975 Statute concerns the utilization of “the joint machinery
necessary for the optimum and rational utilization of the River Uruguay”
 Art. 1). The raison d’être of the Statute is to achieve the optimum and
rational utilization of the river through the implementation of procedural

256

obligations as established in Articles 1, 7 to 12, and 27. The Statute’s
rrefutable purpose is to prevent unilateral actions in the determination
of the uses of a shared natural resource “which are liable to affect naviga-
 ion, the régime of the river or the quality of its waters” (Art. 7). Addi-
 ionally, Article 27 provides that :

         “The right of each party to use the waters of the river, within its
      jurisdiction, for domestic, sanitary, industrial and agricultural pur-
      poses shall be exercised without prejudice to the application of the
      procedure laid down in Articles 7 to 12 when the use is liable to
      affect the régime of the river or the quality of its waters.”

The Court states that it has :
      “already dealt with the obligations arising from Articles 7 to 12 of
      the 1975 Statute which have to be observed, according to Article 27,
      by any party wishing to exercise its right to use the waters of the
      river for any of the purposes mentioned therein insofar as such use
      may be liable to affect the régime of the river or the quality of its
      waters” (Judgment, para. 177).
  5. The Court is therefore assuming that the breach of Articles 7 to 12
nexorably implies the breach of Article 27. The Court is also of the
opinion that :
      “Article 27 embodies this interconnectedness between equitable and
      reasonable utilization of a shared resource and the balance between
      economic development and environmental protection that is the
      essence of sustainable development” (ibid., para. 177) ;
which shows that the Court recognizes that by breaching Articles 7 to 12
he balance required by Article 27 has also been breached.
  The Court finds that the :
      “overall procedure laid down in Articles 7 to 12, which is structured
      in such a way that the parties, in association with CARU [the
      Administrative Commission of the River Uruguay], are able, at the
      end of the process, to fulfil their obligation to prevent any significant
      transboundary harm which might be caused by potentially harmful
      activities planned by either one of them” (ibid., para. 139).

   6. As a consequence of the above, Uruguay has violated not only Arti-
cles 7 to 12, as the Court has asserted, but also Article 27 which is sub-
stantive in nature. Furthermore, the non-observance by Uruguay of the
object and purpose of the Statute itself constitutes a grave substantive
breach of the Statute.

257

       II. The “No Construction Obligation” during the Processes
                Leading to the Settlement of the Dispute

   7. The Court deals with the question of Uruguay’s obligations follow-
 ng the end of the negotiation period (Judgment, paras. 151 to 158) con-
cluding :
      “that Uruguay did not bear any ‘no construction obligation’ after
      the negotiation period provided for in Article 12 expired . . . Con-
      sequently the wrongful conduct of Uruguay . . . could not extend
      beyond that period.” (Ibid., para. 157.)
I categorically disagree with this finding.
   8. It is true that the “no construction obligation” that Uruguay was
supposed to respect between the end of the negotiation period and the
delivery of the final judgment of the Court is not expressly laid down by
 he 1975 Statute, a point stated by the Court (ibid., para. 154). On the
contrary, it is wrong to assume, as the Court does, that the above obliga-
 ion cannot be derived from the Statute’s provisions.
   9. The Statute only allows parties to carry out or authorize the planned
work if the notified party raises no objections or does not respond within
 he period established in Article 8. Article 9 provides that “If the notified
Party raises no objections or does not respond within the period estab-
 ished in Article 8, the other Party may carry out or authorize the work
planned.” The right to carry on or authorize the planned works could
also result from the Parties’ agreement at the conclusion of the negotia-
 ion period designed under Chapter II of the 1975 Statute.

   10. The Court’s assertion that “Article 9 only provides for such an
obligation during the performance of the procedure laid down in Arti-
cles 7 to 12 of the Statute” (ibid., para. 154) is misleading and without
 egal foundation. Additionally, as I discuss below, the Statute itself links
 he negotiation and judicial settlement processes, thereby naturally
extending the no construction obligation until the end of the proceedings
before the Court.
   11. In my view, Article 9 is complemented by Article 12 in order to
assure that, if no agreement is reached by the parties during negotiations,
 he procedure indicated in Chapter XV shall be followed. The parties
have already assumed the obligation to settle the dispute through the
procedures described in Chapter II, Articles 7 to 12. It follows that the
parties should perform their treaty obligations in good faith and that
 hey must abstain from embarking on the planned works — the very
object of the dispute — until the Court makes its final decision. As a
result, the no construction obligation, once triggered, extends until the
resolution of the dispute.
   12. This interpretation is borne out by the clear language of the Stat-
ute. Article 12 states that “Should the Parties fail to reach agreement
within 180 days following the notification referred to in Article 11, the

258

procedure indicated in Chapter XV shall be followed.” Article 60 pro-
vides that “Any dispute concerning the interpretation or application of
 he Treaty and the Statute which cannot be settled by direct negotiations
may be submitted by either Party to the International Court of Justice.”
When paired with Article 60, it is clear that Article 12 overrules the per-
missive language of Article 60. Even in the authentic Spanish text, where
Article 12 provides that : “Si las Partes no llegaren a un acuerdo . . . se
observará el procedimiento indicado en el Capítulo XV”, it is clear that
 he procedure indicated in Chapter XV requires recourse to the Interna-
 ional Court of Justice. A logical reading of the Statute would also
exclude recourse through Article 12 to the additional part of Article 60,
which refers to the conciliation procedure of Chapter XIV and is not
 mplicated here.

   13. The simple textual interpretation of Article 12 through its context
and through the principle of good faith indicates that Article 12 is man-
datory for the parties. It obliges both parties to follow the procedure
 ndicated in Chapter XV. Article 12 therefore represents a “compromis-
sory arrangement” to settle any dispute stemming from the parties’ fail-
ure to reach an agreement on planned works through submission of the
dispute to the Court.
   14. Following general customary international law as codified by Arti-
cle 31 of the Vienna Convention of the Law of Treaties of 1969, it is my
view that the Court’s interpretation of Article 12 does not comport with
 he clear and precise meaning of the text and its context, as is required by
customary international law and this Court’s jurisprudence. (Sovereignty
over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment,
I.C.J. Reports 2002, p. 645, para. 37 ; Legal Consequences of the Con-
struction of a Wall in the Occupied Palestinian Territory, Advisory Opin-
 on, I.C.J. Reports 2004 (I), p. 174, para. 94 ; Competence of the General
Assembly for the Admission of a State to the United Nations, Advisory
Opinion, I.C.J. Reports 1950, p. 8 ; South West Africa (Ethiopia v. South
Africa ; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 336 ; Polish Postal Service in Danzig, Advisory
Opinion, 1925, P.C.I.J., Series B, No. 11, p. 39 ; Arbitral Award of
31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991,
pp. 69-70, para. 48 and see dissenting opinion of Judge Weeramantry,
pp. 135-137 ; Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras : Nicaragua intervening), Judgment, I.C.J. Reports 1992,
pp. 582-583, paras. 373-374 ; see also Commentary (Treaties), Yearbook
of the International Law Commission, 1966, Vol. II, p. 220, para. 9.)

  The Court’s interpretation also contradicts the very object and purpose
of the 1975 Statute which is “to establish the joint machinery necessary
 or the optimum and rational utilization of the River Uruguay” (Art. 1),
which again contradicts settled rules of treaty interpretation based on the
agreement’s object and purpose (Oil Platforms (Islamic Republic of Iran

259

v. United States of America), Preliminary Objection, Judgment, I.C.J.
Reports 1996 (II), pp. 812-814, paras. 23, 28 ; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, pp. 136-137,
paras. 272-273 ; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indo-
nesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 652, para. 51 ; Rights
of Nationals of the United States of America in Morocco (France v.
United States of America), Judgment, I.C.J. Reports 1952, p. 196 ; Asy-
 um (Colombia/Peru), Judgment, I.C.J. Reports 1950, p. 282 ; Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v.
Norway), Judgment, I.C.J. Reports 1993, pp. 50-51, paras. 26-28 ; Terri-
 orial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 26, para. 52 ; Avena and Other Mexican Nationals (Mexico v.
United States of America), Judgment, I.C.J. Reports 2004 (I), p. 48,
para. 85). Such interpretation deprives Article 12 of its effet utile, vitiating
 he Statute’s text and again violating established rules of treaty inter-
pretation (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judg-
ment, I.C.J. Reports 1994, pp. 25-26, paras. 51-52 ; Lighthouses case
between France and Greece, Judgment, 1934, P.C.I.J., Series A/B, No. 62,
p. 27 ; Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 35,
para. 66 ; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment,
I.C.J. Reports 1978, p. 22, para. 52).

   15. In my view, the Court fails to recognize : first, that when negotia-
 ions came to an end, the “disputed activities” — mentioned at para-
graph 143 of the Judgment — continued to be unsettled ; and second,
 hat recourse to the International Court of Justice as expressed in Arti-
cle 12 was an essential step contained within the procedure considered
necessary by the Parties to ensure the Statute’s object and purpose : the
optimum and rational utilization of the river. The Court also fails to
acknowledge that through Article 12 the Parties have assumed an explicit
obligation, if no agreement is reached, to follow the procedure indicated
 n Chapter XV. The reading of this provision by the Court deprives Arti-
cle 12 and Chapter XV of their substance and enforces an illogical read-
 ng of the mandates of Article 12 and Chapter XV.

   16. The obligation to negotiate — which was accompanied by the no
construction obligation in this case — is just one of the methods for the
peaceful settlement of disputes. The 1975 Statute, as a lex specialis, pro-
vides that if the parties fail to reach an agreement, they must submit to
 itigation before the Court. In that sense, the obligation to negotiate is
 inked to the obligation to refer the dispute to the International Court of
Justice to form a non-severable course of action. Both treaty obligations
must be performed in good faith, as is required by international law. The
Court has already recognized that :

260

      “the mechanism for co-operation between States is governed by the
      principle of good faith. Indeed, according to customary interna-
      tional law, as reflected in Article 26 of the 1969 Vienna Convention
      of the Law of Treaties, ‘[e]very treaty in force is binding upon the
      parties to it and must be performed by them in good faith’. That
      applies to all obligations established by a treaty, including proce-
      dural obligations which are essential to co-operation between States.”
      (Judgment, para. 145.)
  17. Taking that into account, the Court recognizes that :
      “as long as the procedural mechanism for co-operation between the
      parties to prevent significant damage to one of them is taking its
      course, the State initiating the planned activity is obliged not to
      authorize such work and, a fortiori, not to carry it out” (ibid.,
      para. 144).
   Then the Court concludes in paragraph 147 that Article 12 is within
 he joint mechanism provided by the Statute ; based on this finding, the
Court then concludes that “[c]onsequently, Uruguay disregarded the
whole of the co-operation mechanism provided for in Articles 7 to 12 of
 he 1975 Statute” (ibid., para. 149). It is my view that the Court could not
 gnore that the Parties must perform their obligations under Article 12 in
good faith, and that the no construction obligation that was in force dur-
 ng the negotiations should have continued until the Court’s judgment.
This conclusion comports with the proper interpretation of these provi-
sions ; unfortunately, the Court’s conclusions do not.

   18. The Court holds that “One of the basic principles governing the
creation and performance of legal obligations, whatever their source, is
 he principle of good faith” (ibid., para. 145) and that “Trust and confi-
dence are inherent in international co-operation”, drawing on the Court’s
decision in the Nuclear Tests (Australia v. France) case (Judgment,
I.C.J. Reports 1974, p. 268, para. 46). I cannot agree with the Court’s
finding that a party’s obligation to stay construction on the planned
works ends before a final settlement of the dispute is reached by the
Court under Chapter XV (Judgment, paras. 154 and 157). Even more,
 here is a bizarre juxtaposition of the Court’s conclusion that “Uruguay
 ailed to comply with the obligation to negotiate laid down in Article 12
of the Statute” (ibid., para. 149) with the Court’s decision that the no
construction obligation in this case ended along with the negotiations.
This confusing conclusion shows that the Court ignores that Article 12 —
 n addition to mandating negotiations — also mandates recourse to the
procedure of Chapter XV of the Statute once negotiations come to an
end.
   19. The majority also fails to explain why the obligation to settle the
dispute through recourse to the International Court of Justice, as seen in
Articles 12 and 60, puts an end to the “no construction obligation”. In

261

my own view, under Article 12, the obligation to negotiate — when
exhausted — is replaced by the obligation to settle the dispute at the
International Court of Justice. As a result, the no construction obligation
extends until the dispute is settled by the Court.

   20. This is supported in part by the Judgment, which finds that during
negotiations the parties are bound by the no construction obligation as a
consequence of their obligation to negotiate in good faith (Judgment,
para. 145). However, the majority fails to explain how the direct effect of
 he lack of good faith in negotiations by Uruguay — as was the case
here — results in a right to resume construction of the planned works as
 he case awaits a final decision by the International Court of Justice. This
reading is contrary to the text of Article 12, it has no support within its
context and it is opposed to the object and purpose of the 1975 Statute as
expressed in Article 1. As a result, the Court seems to reward parties who
negotiate in bad faith by allowing them to continue construction of the
works even if they have not fulfilled their procedural obligations in good
 aith.

  21. As a consequence of the above reasoning, I completely disagree
with the Court’s finding that :
         “Article 12 does not impose an obligation on the parties to submit
      a matter to the Court, but gives them the possibility of doing so, fol-
      lowing the end of the negotiation period. Consequently, Article 12
      can do nothing to alter the rights and obligations of the party con-
      cerned as long as the Court has not ruled finally on them. The Court
      considers that those rights include that of implementing the project,
      on the sole responsibility of that party, since the period for negotia-
      tion has expired.” (Ibid., para. 155.)
  22. The Court also contradicts itself when it concludes that :
      “while the 1975 Statute gives it jurisdiction to settle any dispute con-
      cerning its interpretation or application, it does not however confer
      on it the role of deciding in the last resort whether or not to author-
      ize the planned activities. Consequently, the State initiating the plan
      may, at the end of the negotiation period, proceed with the construc-
      tion at its own risk.” (Ibid., para. 154.)
   23. Any failure of the parties to agree at the end of the Chapter II pro-
cedures constitutes a dispute concerning the interpretation and applica-
 ion of the Statute. The Court cannot ignore its responsibility to resolve
 he dispute arising out of the parties’ disagreement on the sole basis that
 he Statute does not confer the power to authorize or forbid the planned
activities because that is simply not correct.

  24. As a result, the Court must exercise its jurisdiction to settle the dis-
pute arising out of the Chapter II procedures, even if in doing so it will

262

also judge the viability of the planned works. That is so, in particular,
 aking into account that the Court attributes to itself the role of being
“the ultimate guarantor of [the parties’] compliance with the 1975 Stat-
ute” when deciding on the merits of the dispute (Judgment, para. 156).
   25. Even were it accepted, again for the sake of argument, that “the
State initiating the plan may, at the end of the negotiation period, pro-
ceed with construction at its own risk” (ibid., para. 154), it does not fol-
 ow that either State may commission works which prematurely begin
using the protected shared resource before the dispute is settled. In other
words, even if sovereign rights would allow a riparian State to construct
 n its own territory at its own risk, this sovereign right must not be
extended to allow the unilateral use or disposition of a shared natural
resource until the final resolution of the dispute.

   26. It is noteworthy that the Court in its Order on Provisional Meas-
ures of 13 July 2006 stated that “in proceeding with the authorization
and construction of the mills, Uruguay necessarily bears all risks relating
 o any finding on the merits that the Court might later make” (I.C.J.
Reports 2006, p. 133, para. 78). This Order, while it did not forbid con-
 inued construction of the mill, could not and did not give a green light to
Uruguay to commission the mill which would allow the mill to use the
shared resource of the river.

  27. In fact, the Court, after emphasizing that :
      “the present case highlights the importance of the need to ensure
      environmental protection of shared natural resources while allowing
      for sustainable economic development . . . in particular [it is] neces-
      sary to bear in mind the reliance of the Parties on the quality of the
      water of the River Uruguay for their livelihood and economic devel-
      opment” (ibid., p. 133, para. 80),

hen proceeded to state that :
      “the Parties are required to fulfil their obligations under interna-
      tional law ; . . . the Court wishes to stress the necessity for Argentina
      and Uruguay to implement in good faith the consultation and
      co-operation procedures provided for by the 1975 Statute, with
      CARU constituting the envisaged forum in this regard ; and . . . the
      Court further encourages both Parties to refrain from any actions
      which might render more difficult the resolution of the present dis-
      pute” (ibid., p. 134, para. 82).
  28. The commissioning of the plant without CARU’s authoriza-
ion, without consultation of Argentina, without regard for Uruguay’s
nternational environmental obligations and without any attention to
he exacerbation of the dispute indicates a flouting of the Court’s

263

direct request. The Court fails to hold Uruguay accountable for these
actions.
   29. This interpretation of Article 12 will validate an “in limbo” situa-
 ion, allowing each of the Parties to unilaterally exploit a shared natural
resource as if it were its own exclusive resource while a dispute over this
utilization is pending before the International Court of Justice.

   III. Satisfaction as the Proper Means of Reparation of Uruguay’s
                  Repeated Breaches of the 1975 Statute
   30. The Court acknowledges that Argentina requested the Court “to
adjudge and declare that Uruguay must ‘provide adequate guarantees
 hat it will refrain in future from preventing the 1975 Statute from being
applied’” (Judgment, para. 277).
   31. Although I disagree with the Court’s assessment that there are no
“special circumstances in the present case requiring the ordering of a
measure [requiring non-repetition] such as that sought by Argentina”
 ibid., para. 278), I arrive at the Court’s overall conclusion concerning
reparation through different reasoning.
   32. On the issue of special circumstances, the Court fails to consider
 hat Uruguay’s conduct — in preventing the Statute’s joint machinery
 rom functioning — amounts to a substantive violation of the 1975 Stat-
ute, as embodied in the object and purpose of the Statute as set out in
Article 1. This violation of Article 1, as well as Articles 7 to 12 and 27,
may not in principle be remedied just through the mere recognition of
such a violation. Assuming, for the sake of argument, that the violation
of substantive obligations as described above remains inchoate during
 he construction process, including the site selection process, it still means
 hat after the construction of the mill it is still violative of the Statute for
a riparian State to use the river waters as its own.

   33. It is critical to take into account many facts in order to determine
whether the Court should find that special circumstances exist. First, dif-
 erent proposals to establish new mills in the area are constantly under
consideration by Uruguay. Second, Uruguay’s violations of procedural
obligations were the direct consequence of its own will to avoid compli-
ance with the 1975 Statute. Third, Uruguay lacked good faith in the
negotiations. Fourth, there was public recognition by Uruguayan authori-
 ies of its lack of interest in complying with the Statute’s procedural
obligations.

  In particular as to the fourth point, the former Minister of Foreign
Affairs of Uruguay, when addressing the Senate in November 2003
expressed :
       “To recognize that the Commission has specific jurisdiction at this

264

      stage of the procedure would amount to accepting the presumption
      that Articles 7 and 8 apply. The presumption is that this project will
      affect or might affect — I believe the expression used in the Statute
      is ‘is liable to’— the quality or navigability of the waters. Given that
      these two elements are absent, it is clear that the Government of
      Uruguay is not in a position where it is obliged to refer this matter to
      the Commission. That would represent a renunciation of its powers
      that the Government of the Republic has no intention of making ;
      nothing could be more simple.” (Minutes, statement by the Minister
      for Foreign Affairs, Mr. Didier Opertti, to the Uruguayan Senate
      (November 2003).)” [Translation by the Registry.]

  From the above facts there is only one conclusion : that Uruguay’s
actions may not be disregarded, as the Court does here. Instead, these
actions represent the special circumstances that justify the imposition of
an obligation of non-repetition in order to ensure that Uruguay will not
 ake steps to wilfully obstruct the application of the 1975 Statute in the
 uture.
  34. The Court in paragraph 278 recognizes that it has observed :

         “ ‘[w]hile the Court may order, as it has done in the past, a State
      responsible for internationally wrongful conduct to provide the
      injured State with assurances and guarantees of non-repetition, it
      will only do so if the circumstances so warrant, which it is for the
      Court to assess.
         As a general rule, there is no reason to suppose that a State whose
      act or conduct has been declared wrongful by the Court will repeat
      that act or conduct in the future, since its good faith must be pre-
      sumed (see Factory at Chorzów, Merits, Judgment No. 13, 1928,
      P.C.I.J., Series A, No. 17, p. 63 ; Nuclear Tests (Australia v. France),
      Judgment, I.C.J. Reports 1974, p. 272, para. 60 ; Nuclear Tests
      (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477,
      para. 63 ; and Military and Paramilitary Activities in and against
      Nicaragua (Nicaragua v. United States of America), Jurisdiction
      and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para 101).
      There is thus no reason, except in special circumstances . . . to order
      [the provision of assurances and guarantees of non-repetition].’
      (Dispute regarding Navigational and Related Rights (Costa Rica v.
      Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 150.)”
   35. While the Court quotes from its own precedents, as it does here, it
avoids taking into consideration as a special circumstance the fact, rec-
ognized by the Court, that Uruguay has breached its procedural obliga-
 ions, in respect to the ENCE project and in respect to the Orion (Botnia)
mill and its adjacent port (see Judgment, paras. 105 to 122). The Court
has the evidence before it that there was already a repetition by Uruguay

265

of procedural breaches of identical obligations under the 1975 Statute.
Furthermore, the Court has already concluded that Uruguay has breached
 ts obligations to negotiate in good faith (see Judgment, para. 149). In
spite of that factual evidence, the Court considers that Uruguay’s good
 aith in future applications of the 1975 Statute “must be presumed”. I am
at odds with such reasoning.
   36. The evidence on the record and the findings of the Court concern-
 ng procedural violations confirm that special circumstances are present
 n the present case so as to justify the express imposition in the dispositive
of an obligation of non-repetition upon Uruguay, particularly given the
bad faith conduct of Uruguay in the past.

  37. Despite this belief, it is my understanding that the obligation of
non-repetition exists, in the present case, in the Court’s finding :
      “that both Parties have the obligation to enable CARU, as the joint
      machinery created by the 1975 Statute, to exercise on a continuous
      basis the powers conferred on it by the 1975 Statute, including its
      function of monitoring the quality of the waters of the river and of
      assessing the impact of the operation of the Orion (Botnia) mill on
      the aquatic environment. Uruguay, for its part, has the obligation to
      continue monitoring the operation of the plant in accordance with
      Article 41 of the Statute and to ensure compliance by Botnia with
      Uruguayan domestic regulations as well as the standards set by
      CARU. The Parties have a legal obligation under the 1975 Statute to
      continue their co-operation through CARU and to enable it to
      devise the necessary means to promote the equitable utilization of
      the river, while protecting its environment.” (Ibid., para. 266.)

  38. As the Court has found that Uruguay alone breached its proce-
dural obligations under the 1975 Statute, it is incumbent upon Uruguay
 o conform its conduct in order to duly comply with its treaty obligations
and the Court’s recognition of the role of CARU as noted above.

   39. In my opinion, the imposition of such obligations of conduct, in
 he light of the general rule that a State whose acts or conduct have been
declared wrongful by the Court will not repeat the acts or conducts in the
 uture — assuming the State’s good faith in following the Court’s deci-
sion — makes a declaration of the obligation of non-repetition by the
Court redundant.

          B. SUBSTANTIVE OBLIGATIONS UNDER THE 1975 STATUTE

  40. Whereas in the context of procedural violations, the Court has
before it firm evidence on which to base its conclusions — namely, the
1975 Statute and a record of the steps taken by the Parties — the same

266

evidential certainty does not exist in the context of Uruguay’s alleged
substantive violations, thereby severely hampering the Court’s ability to
make appropriate determinations of fact and law based on sound scien-
 ific findings.

                 I. Determination of the Burden of Proof
   41. The Judgment notes that Argentina has itself generated much factual
 nformation and it adds that materials produced by Uruguay have been
available at various stages of the proceedings or have been available
 n the public domain (Judgment, para. 226). The Court thus finds that
Argentina has not been placed at a disadvantage in terms of the produc-
 ion of evidence relating to the discharges of effluent from the mill. How-
ever, such a finding is contradicted by the fact that Argentina was only
able to collect scientific data from the Argentine side of the River Uruguay,
because it was prevented from collecting samples on the Uruguayan side
of the river, particularly where discharges from the Orion (Botnia) mill
occur. Argentina was also banned from collecting samples from the mill
 tself. In addition, no evidence was collected in common through CARU.
Therefore Argentina was not in a position to obtain evidence at the
source itself. This critical fact should have been acknowledged in the
Judgment.

  42. In terms of the burden of proof, I agree with the finding of the
Court that :
      “in accordance with the well-established principle of onus probandi
      incumbit actori, it is the duty of the party which asserts certain facts
      to establish the existence of such facts. This principle which has been
      consistently upheld by the Court . . . applies to the assertions of fact
      both by the Applicant and the Respondent.” (Ibid., para. 162.)
  I disagree however with the Court’s assessment that : “that there is
nothing in the 1975 Statute itself to indicate that it places the burden of
proof equally on both Parties” (ibid., para. 164).

   43. First, Article 12 imposes upon both Parties an obligation to refer
 heir dispute concerning any lack of agreement on the viability of planned
works to the International Court of Justice. Second, a finding by the
Court that Uruguay has breached its procedural obligations under the
Statute necessarily implies that Uruguay has not complied with its obli-
gations to produce all relevant evidence to CARU and to Argentina so as
 o allow for an assessment as to whether or not the planned works are
“liable to affect navigation, the régime of the river or the quality of its
waters” (Art. 7). In my view, a direct consequence of Uruguay’s proce-
dural breaches is that Uruguay should have provided the missing evi-
dence to the Court.

267

   44. I agree that any breach of Chapter II obligations does not neces-
sarily justify a reversal of the burden of proof, but such a finding does
reaffirm the basic principle stated by the Court in paragraph 162 with
reference to the onus probandi of both the Applicant and the Respondent.
It follows from the Court’s finding that, “while a precautionary approach
may be relevant in the interpretation and application of the provisions of
 he Statute”, in interpreting and applying Article 12 an “equal onus to
prove under the 1975 Statute” (Judgment, para. 164) should be binding
upon both Parties. In my view there is a clear contradiction between this
statement and the following assertion by the Court :

         “It is of course to be expected that the Applicant should, in the
      first instance, submit the relevant evidence to substantiate its claims.
      This does not, however, mean that the Respondent should not co-
      operate in the provision of such evidence as may be in its possession
      that could assist the Court in resolving the dispute submitted to it.”
      (Ibid., para. 163.)
   It is difficult to follow the Court’s reasoning when, on the one hand, it
states that Uruguay has breached its procedural obligations (among
which is the obligation to produce information) and, on the other hand,
 t merely exhorts Uruguay, as the Respondent, to co-operate. The Court
 s thus transforming a previous binding obligation to produce evidence
 nto a mere goodwill gesture to co-operate by providing evidence to the
Court.

      II. The Object and Purpose of the 1975 Statute and the Uses
                            of the Waters
   45. Article 1 not only informs the interpretation of the substantive
obligations, as the Court finds at paragraph 173 of its Judgment, but also
 ays down specific rights and obligations for the Parties. It is true that
optimum and rational utilization is to be achieved through compliance
with the obligations prescribed by the 1975 Statute for the protection of
 he environment and the joint management of the River Uruguay as a
shared resource. However, it is also true that optimum and rational utili-
zation creates specific obligations for both riparian States to prevent any
use liable to affect navigation, the régime of the river or the quality of the
waters. In that context, any planned works and any use of the river must
be analysed jointly to evaluate the potential damage to the river as a
shared resource and any transboundary damage to the other party, par-
 icularly given that the river serves as an important source of water for
 he local communities and also sustains a thriving tourism industry.

  46. In keeping with earlier comments on the relationship between pro-

268

cedural and substantive obligations, under Article 27 of the Statute
 he “status” of the River Uruguay as a shared natural resource is
reflected in the fact that national use of the river for domestic,
sanitary, industrial and agricultural purposes is subject to the procedural
obligations laid down in Articles 7 to 12, where such utilization is
significant enough to affect the régime of the river or the quality of its
waters. The right of each State to use the river within its domestic
 urisdiction is subject to the strict co-operation mechanism established
under the 1975 Statute.

   47. I strongly believe that Article 1 should be considered as an umbrella
clause establishing joint machinery for the observance of substantial obli-
gations to accomplish the optimum and rational utilization of the river.
Meanwhile, the content of Article 27, considered by the Court as “the
essence of sustainable development” (Judgment, para. 177), constitutes in
 tself a substantial obligation.

   48. To my understanding, the Court, by declaring that Uruguay has
breached its procedural obligations under Articles 7 to 12 of the 1975 Stat-
ute, has confirmed : (i) the non-observance of the joint machinery pre-
scribed under Article 1 in order to accomplish the optimum and rational
utilization of the river ; and (ii) the non-observance of Article 27 under
which the Parties are obliged to apply “the procedure laid down in Arti-
cles 7 to 12 when the use is liable to affect the régime of the river or the
quality of its waters”.
   49. In light of the above, the Court should have declared that Uruguay
had breached its substantive obligations under Articles 1 and 27 of the
1975 Statute before proceeding to an evaluation of adequate reparation.
I regret that the Court has not done so.

         III. The Obligation to Co-ordinate Measures to Avoid
             Changes in the Ecological Balance of the River
                  and Areas Affected by It (Art. 36)
  50. In my view, the Court states incorrectly at paragraph 189 that
“Argentina has not convincingly demonstrated that Uruguay has refused
 o engage in such co-ordination as envisaged by Article 36, in breach of
 hat provision”. It is also stated at paragraph 185 that “the purpose of
Article 36 . . . is to prevent any transboundary pollution liable to change
 he ecological balance of the river by co-ordinating, through CARU, the
adoption of the necessary measures”. According to the Court, those
measures were adopted through the promulgation of standards by CARU.

  51. But this reading by the Court limits the Statute to CARU stand-
ards. However, CARU standards were agreed upon to control and pre-
vent pollution arising from pre-existing uses of the river waters. As a
result, the Court’s position is at odds with the weight of the evidence. The

269

Court’s reading does not allow for pre-emptive regulation of planned
 uture uses. The CARU Digest itself refers to the joint machinery and
 he necessary intervention of CARU resulting from Articles 7 to 12 for
 uture planned uses of the river waters. It follows that for any planned
uses of the river, the co-ordination envisaged in Article 36 should be
channelled through CARU according to Articles 7 to 12. Any other
 nterpretation of Article 36 implies that the Parties and CARU would
not have the chance to assess the effects of planned uses of the river
waters but would simply have to wait until the industrial facility
became operational in order to verify at that point whether it polluted
 he river or not. This is not the object and purpose of the Statute as
stated in Article 1.

   52. That is why I believe that the object and purpose of the Statute has
been violated and this violation has to be sanctioned. Argentina has
clearly proven that Uruguay has refused to engage in such co-ordination
and thus it is apparent that Uruguay has breached Article 36 of the 1975
Statute.

       IV. The Obligation to Preserve the Aquatic Environment
                and Prevent Its Pollution (Art. 41)

a) Environmental impact assessments
   53. My main points of disagreement with the Court’s findings on Arti-
cle 41 are related to issues concerning environmental impact assessments
and effluent discharges.
   Concerning environmental impact assessments, I do believe that there
 s sufficient evidence in the record to prove that Uruguay has breached
 ts obligation to “co-ordinate, through the Commission, the necessary
measures to avoid any change in the ecological balance and to control
pests and other harmful factors in the river and the areas affected by
 t” (Art. 36). That lack of co-ordination has negatively influenced the
performance by Uruguay of its obligations under Article 41 (a) of
 he Statute to protect and preserve the aquatic environment and, in
particular, to prevent its pollution. Consequently, I disagree with the
Court’s conclusions on Uruguay’s compliance with due diligence
requirements on environmental impact assessments in relation
 o : (i) the chosen site for the Orion (Botnia) mill ; and (ii) the
consultation of the affected populations. I will address both concerns
 n turn.

  (i) The siting of the Orion (Botnia) mill at Fray Bentos
  54. In its consideration as to whether Uruguay carried out an appro-

270

priate assessment prior to the determination of the final site, the Court
should not have satisfied itself with a mere mention in the Final Cumu-
 ative Impact Study (hereinafter “CIS”) of the International Finance
Corporation (hereinafter the “IFC”) that Botnia evaluated in 2004 four
 ocations before choosing Fray Bentos. The CIS dates from Septem-
ber 2006, which is more than a year and a half after the authorization
 n February 2005 for the construction of the Orion (Botnia) mill and
came after Argentina’s complaints about the lack of alternative site
assessment and after proceedings had been instituted before the Court.
Secondly, the CIS reference to Botnia’s evaluation is a one page referral
containing a listing of the four sites and a minimum of substance about
 he reasons why the alternative sites were discarded.

   55. According to the CIS, “logistics” played a key role in the decisions
of both Botnia and ENCE not to proceed with any of the alternative
sites, even though it was also claimed that “environmental and structural
aspects were also important”. No information, however, is given as to
what those environmental aspects were, neither is there evidence — nor,
 or that matter, is it claimed — that environmental impact assessments
were conducted in relation to those alternative sites.

   56. Particularly striking are the reasons provided by Botnia for its
decision to discard the other three locations : for La Paloma, it was
because of its vicinity to important tourist areas ; for Nueva Palmira, it
was because of the presence of culturally important sites (Desembarco de
 os 33 Orientales) and the proximity of “high end” residential areas ; and
 or Paso de los Toros, it was because of the limited amount of water
available. The other reasons listed are purely of an economic nature
related to costs and the availability of fresh water. The “comparative
 able” found in pages 2.10 and 2.11 of the CIS shows no information as
 o why Fray Bentos was the safest choice to build the mill from an environ-
ment point of view, other than the claim that the nearer the plant
 rom the eucalyptus plantations the less the ecological harm.

   57. The assumption made in the Judgment that, “in accordance with
Articles 36 and 56 of the 1975 Statute, CARU must have taken into
account the receiving capacity and sensitivity of the waters of the river”
 Judgment, para. 214) does not nullify the obligation to assess the
sensitivity and vulnerability of a pre-determined site with reference to a
specific planned use and its particular impact on that site. This is in
accordance with a strict observance of Article 27, Articles 7 to 12 and
Article 1 of the Statute and with the Digest’s referral to Articles 7 to 12
 or future planned uses. In that context, the general assumption made
 n the Judgment cannot overrule the provisions of the Statute, nor
can it be relied upon to justify non-compliance with obligations derived
 rom the mandatory implementation of Chapter II of the Statute.

271

Moreover, the Court admits that the CARU standards were not exhaus-
 ive (Judgment, para. 202).
   58. Because of Uruguay’s procedural violations, both CARU and
Argentina were deprived of the possibility to evaluate whether the planned
activity was liable to affect the quality of the waters in that particular site
of the River Uruguay. If procedural obligations had not been violated by
Uruguay, CARU and Argentina would have had the chance to adequately
 ake into consideration the geomorphological and hydrological charac-
 eristics of the river at the site and the capacity — more precisely the
 ncapacity — of its waters to disperse and dilute different types of dis-
charges from the projected works. Any inadequacy of the site itself, par-
 icularly with respect to certain areas of the river such as Fray Bentos,
could have been detected if the obligations under Chapter II had been
duly complied with.

  (ii) Consultation of the affected populations
   59. The Court recognizes that “[t]he Parties disagree on the extent to
which the populations likely to be affected by the construction of the
Orion (Botnia) mill, particularly on the Argentine side of the river, were
consulted in the course of the environmental impact assessment” (ibid.,
para. 215). The Parties’ disagreement concerns the results of the consulta-
 ion of the affected populations, the extent to which concerns raised were
 aken into consideration and whether the consultation was meaningful.
The Court further recognizes that both Parties agreed on such consulta-
 ion, although the Court is of the view that “no legal obligation to con-
sult the affected populations arises for the Parties from the instruments
 nvoked by Argentina” (ibid., para. 216).

   60. The Court omits to refer to the unilateral obligation assumed by
Uruguay to comply with established European standards requiring pub-
 ic consultation of local populations liable to be affected by transbound-
ary projects in such a way as to guarantee their effective participation at
an early stage (IPPC Directive, 1996).
   61. The finding of the Court that the obligation to consult the affected
populations does not arise from the instruments invoked by Argentina
does not detract from the fact that both Parties were in agreement that
consultation of the affected populations should form part of the environ-
mental impact assessment.
   62. The Court notes that both before and after the granting of the ini-
 ial environmental authorization, Uruguay undertook activities aimed at
consulting the affected populations (Judgment, para. 217) and that
between June and November 2005 further consultations were conducted
by the Consensus Building Institute, a non-governmental organization
contracted by the IFC (ibid., para. 218). The Court also notes that
“[i]n December 2005, the draft CIS and the report prepared by the Con-

272

sensus Building Institute were released, and the IFC opened a period of
consultation to receive additional feedback from stakeholders in Argen-
 ina and Uruguay” (Judgment, para. 218). In light of the above, the
Court finds, at paragraph 219, “that consultation by Uruguay of the
affected populations did indeed take place”. I disagree with this conclu-
sion.
   63. The Court does not answer the issues raised by the Parties. It does
not make any pronouncements on the question of whether or not the
concerns of the Argentine population were taken into account or if con-
sultations were meaningful or not.
   64. The consultation referred to by the Court at paragraph 217 of its
Judgment was characterized by the Ombudsperson of the IFC as irrele-
vant and meaningless. The IFC ombudsperson presented her preliminary
report entitled : “Complaint regarding IFC’s proposed investment in
Celulosas de M’Bopicuá and Orion Projects” in which it is stated that the
construction of the cellulose plants was presented as a fait accompli to
 hose who had supposedly been consulted.

  65. In my view, all of the consultations mentioned by the Court at
paragraph 218 of its Judgment took place after environmental authori-
zations had been granted, and therefore are all meaningless. This is sup-
ported by the Court’s acknowledgement that “both Parties agree that
consultation of the affected populations should form part of an environ-
mental impact assessment” (ibid., para. 215). This requires that the con-
sultation must have taken place before the environmental impact assess-
ment was issued. Thus, to my understanding, Uruguay has not complied
with its due diligence obligation to consult the affected populations prior
 o the issue of the authorization to build the Orion (Botnia) mill.

   66. The permanent protest of the population of Gualeguaychú is addi-
 ional evidence of the non-fulfilment by Uruguay of its obligation to
engage in a reasonable and meaningful consultation of the affected popu-
 ation on the Argentine side of the river.

b) Effluent discharges and the Court’s role in evaluating scientific data
   that proves violations of substantive obligations
   67. With regard to discharges of effluents from the Orion (Botnia)
mill, I disagree with the Court’s conclusions which are based on an inade-
quate evaluation of data. It is also a matter of deep regret to me that the
Court did not address the future cumulative effects of actual pollution
generated by the Orion (Botnia) mill in order to assess future harmful
effects during the 40-year lifespan of the plant.

  68. I was particularly troubled by Uruguay’s inability to collect and
produce reliable data. Most of the data that Uruguay submitted in its
pleadings was provided by Botnia to Uruguay’s National Directorate for

273

 he Environment (DINAMA) which passed it on to the Court. My main
concern is that the Court attempts to draw solid and justified conclusions
on the law — particularly in assessing Uruguay’s substantive viola-
 ions — without the weight of incontrovertible scientific evidence to bol-
ster its conclusions. I believe that a judgment based on disputed data as
well as on conclusions which have been reached without any independent
scientific evaluation will not be able to withstand scrutiny, and in par-
 icular will not provide a solution that takes due account of the realities
of the situation on the river.

   69. Specific examples of facts that the Court dismisses — and which I
will address in further detail below — include : discrepancies in the
Adsorbable Organic Halogens (AOX) data collected by the two Parties,
 ncluding extremely high measurements that were summarily discarded
by DINAMA ; an unexplained increase in bacteria associated with the
pulping process after the commissioning of the Orion (Botnia) mill ;
discrepancies between data collected on phosphorus in the water ; the
February 2009 record of an algal bloom of an exceptionally high
magnitude, intensity and toxicity, an event which occurred only after
 he commissioning of the plant ; the threefold rise in levels of phenolic
substances after the commissioning of the plant in violation of CARU
standards for water quality for the river ; the baffling existence of
nonlyphenols in the water combined with the expert opinion presented
by Argentina, according to which Botnia’s assurances of the non-use
of nonlyphenols at the mill was deeply flawed and inconsistent with
 he reality of pulp mill operations ; the troubling existence of dioxins
and furans in the air and aquatic environment. With respect to all of
 hese polluting elements in the water, the Court considers that there
 s incomplete or disputed evidence establishing their presence and/or
a link between their presence and the Orion (Botnia) mill. Basing its
 egal analysis on this incomplete evidence renders the Judgment itself
 ncomplete.

   70. In various key passages, the Court reaches conclusions on alleged
substantial violations while acknowledging the lack of scientific certainty
underpinning those findings : “Argentina has not convincingly demon-
strated that Uruguay” (Judgment, para. 189) ; “the Court is not in a
position to conclude that Uruguay” (ibid., para. 228) ; it has “not been
established to the satisfaction of the Court” (ibid., para. 250) ;
“there is insufficient evidence” (ibid., para. 254) ; “there is no clear
evidence to link” (ibid., para. 259) ; “a clear relationship has not been
established” (ibid., para. 262) ; “the record does not show any clear
evidence” (ibid., para. 264).

  71. However, despite the lack of specialized expert knowledge, the

274

Court sets itself the task of choosing what scientific evidence is best, dis-
carding other evidence, and evaluating and weighing raw data and draw-
 ng conclusions. In my view, the specific discrepancies and general incon-
clusiveness of the data itself undermines the legal pronouncements of the
Court. My concerns about the Court’s reliance on this scientific data
encourage my vigorous dissent.

   72. In particular, the Court reflects upon the scientific submissions by
 he Parties in its discussion of the data. However, throughout this over-
view of the evidence, there is no discussion about the scientific integrity
of the scientific methodologies applied. There is also no discussion about
 he scientific integrity of the results. This silence on the important issue of
credibility of the scientific submissions reflects more than just an acciden-
 al oversight. Instead, this silence underscores the Court’s lack of scien-
 ific competence and throws doubt on the Court’s ability to determine
whether the data is scientifically viable or credible. The Court does not
have the proper expertise or knowledge to draw the expert conclusions
 hat it makes, and this Judgment fully reflects that.

  73. I will next address what I consider to be the main inconsistencies
of the Court’s evaluation process by reference to (i) adsorbable organic
halogens ; (ii) phosphorus ; (iii) the algal bloom of February 2009 ; (iv) phe-
nolic substances ; (v) nonylphenols ; (vi) dioxins and furans ; and (vii) air
pollution.

  (i) Adsorbable Organic Halogens (AOX)
   74. The Court in paragraph 228 notes that the levels of Adsorbable
Organic Halogens (AOX) exceeded by more than double the acceptable
 evels in the river’s water. While the Court notes that the initial environ-
mental authorization from almost two years prior to the commissioning
of the Orion (Botnia) mill did allow for yearly averaging of this
parameter, it does not have the appropriate factual data to draw this
conclusion. As the Court says, there is an “absence of convincing
evidence” (Judgment, para. 228) proving that this is an isolated episode
rather than an enduring problem. However, the Court does not then
point to evidence that the yearly parameters themselves were met, nor
does it suggest that convincing evidence has been provided to show
 hat this result was just an errant data value. Instead, the Court ignores
 he potential danger that could stem from prolonged discharge of this
persistent organic pollutant, and draws a conclusion that this data
value is inconsequential.

275

  (ii) Phosphorus

   75. The Court turns to phosphorus in paragraph 240. The Court notes
 hat DINAMA stated clearly that the “effluent in the plant will emit
 amounts of nitrogen and phosphorus] that are the approximate equiva-
 ent of the emission of the untreated sewage of a city of 65,000 people”
 Judgment, para. 244). While the Court noted that this amount of the
pollutant was a mere fraction of the total amount of nutrients being put
 nto the river, it also referred to a section of the DINAMA Report that
required that there be “compensation for any increase over and above the
standard value for any of the critical parameters” (ibid., para. 245).
Despite this clear requirement, the Orion (Botnia) mill was commissioned
and allowed to begin adding its effluent to an already eutrophic river
without providing the “compensation” required by DINAMA. The sew-
age treatment agreement that was concluded between Botnia and Uru-
guay is still at a project stage, even though the plant began to operate
 n November 2007. The fact that the river is already eutrophic, meaning
 hat the addition of nutrients could potentially cause serious damage to
 he ecosystem, is critical.

   76. The Court acknowledges that the level of concentration of total
phosphorus in the River Uruguay exceeds the very limits established by
Uruguayan legislation in respect of water quality standards (ibid.,
para. 247), standards that become applicable in the absence of CARU
standards (ibid., para. 242). The Court also notes that DINAMA recom-
mended in its Environmental Impact Assessment of 11 February 2005
 hat in light of the heavy load of nutrients (phosphorus and nitrogen) in
 he river, “it [was] not appropriate to authorize any waste disposal that
would increase any of the parameters that present critical values” (ibid.,
para. 245 ; emphasis added). In addition, Uruguay pledged to abide
by the regulations of the European Community, among which is the
European Union Water Framework Directive which provides that
 n a river that is already eutrophic, no additional discharges of
phosphorus are allowed. It follows that any additional discharges of
phosphorus are contrary to the December 2001 Integrated Pollution
Prevention and Control Reference Document on Best Available
Techniques in the Pulp and Paper Industry of the European Commission
 IPPC-BAT).

  (iii) The algal bloom of February 2009

 77. Uruguay never contested, nor has the Court addressed the issue,
hat the February 2009 scum was a toxic algal bloom of a magnitude,

276

 ntensity and toxicity that has never been recorded in the river before —
1000 times higher than the historic maximum in the river — and that the
bloom occurred after the Orion (Botnia) mill started operating.

   78. Though the Court dismisses the possibility that nutrient discharges
equivalent to a city of 65,000 people could truly be the “tipping point”
 hat leads to toxic algal blooms, this determination is made without a
coherent scientific basis. Even if it were true that the Orion (Botnia) mill
only adds amounts of phosphorus which, as the Court says, is “insignifi-
cant in proportionate terms as compared to the overall total phosphorus
 n the river from other sources” (Judgment, para. 247), this does not alter
 he fact that the plant was and is adding phosphorus to the river without
proper compensation through removal processes.

   79. Claims to the effect that the yearly carnival at Gualeguaychú is the
reason for the increase in phosphorus — an event which has not typically
been accompanied by algal blooms in the past — merely reinforce the
probability that the discharges from the pulp mill had a negative cumu-
 ative impact. Therefore, I cannot agree with the Court’s position that
such a link should be rejected without providing a scientific basis. It is
reasonable to consider the likelihood of a link existing between the algal
bloom and the Orion (Botnia) mill given that the operation of the plant
represents a new circumstance. As with other data, the Court would have
benefited greatly from a more detailed and expert evaluation of the sci-
entific facts.

   80. I also have difficulty understanding the Court’s conclusion that
 he algal bloom episode of 4 February 2009 may not be linked, in light
of the evidence in the record, to nutrient discharges from the Orion
 Botnia) mill. During the proceedings, Argentina presented extensive
data regarding this phenomenon which pointed to the Orion (Botnia)
mill as a significant contributor. The evidence included satellite
 mages showing the vast extent of the bloom, a river flow modelling
based on actual data that matched precisely the distribution of the
bloom, data indicating the presence in the scum, in addition to algae,
of several effluent products coming directly from the Orion (Botnia)
mill such as wood fibres, bacteria typically associated with wood
pulp, namely, klebsiella, nonylphenol contaminants, and higher
 evels of sodium and AOX. The presence of those contaminants
 ound in the scum provides clear evidence that the mill effluents
contributed to the 4 February 2009 bloom.

277

  (iv) Phenolic substances

   81. Once again, the question of phenolic substances reveals the great
deal of difficulty that the Court has faced in its attempts to resolve the
scientific issues at stake in this case, including the difficulty of “identify-
 ng” and properly evaluating — among the numerous and complex sci-
entific data produced by the Parties — the evidence and arguments in the
record that are relevant.
   In dealing with phenolic substances, the Court concluded that “there is
 nsufficient evidence to attribute the alleged increase” (Judgment,
para. 254) to the operation of the Orion (Botnia) mill. However, the
CARU standard which sets the limit for phenolic substances at one
microgramme per litre has been violated in the immediate vicinity of the
Orion (Botnia) mill. According to the Uruguayan data submitted by
Argentina, in the pre-operational phase of the Orion (Botnia) mill
until November 2007, phenolic substances were below that maximum
 evel as shown by Uruguay’s State Agency for Sanitary Works (OSE)
measurements in the Fray Bentos water intake, located just 3 km south of
 he Orion (Botnia) mill and 70 metres offshore. In contrast, the latest
OSE data, from 13 November 2007 until 13 May 2009, show that since
 he Orion (Botnia) mill went into operation the average level of phenolic
substances rose to three microgrammes per litre (the average was three
 imes higher than CARU standards, with peak levels of 20.7 micro-
grammes per litre, which is 20 times higher than CARU standards). As
phenols are present in the wood lignin, certain amounts of phenols will
necessarily be part of the effluent from the Orion (Botnia) mill. During
 he proceedings, Argentina compared and contrasted DINAMA’s data
used by Uruguay, with the data collected by OSE, a government agency
 hat makes ordinary assessments of water quality for the Fray Bentos
water intake. However, the Judgment only reflects DINAMA’s assess-
ment even though the OSE data seems to be much more relevant to prove
 he quality and origin of the Orion (Botnia) mill’s discharges. Had the
Court taken into consideration the OSE data, the Court would have
come to a different conclusion : that there is evidence to attribute an
 ncrease in the level of concentration of phenolic substances in the river
 o the operation of the Orion (Botnia) mill.

   82. Although the Court hinges its conclusion on the lack of evidence
 hat the Orion (Botnia) mill was responsible, it does not directly address
 he discrepancies in the data or the credibility of the conclusions. But by
determining that some of the Uruguayan data is more reflective of the
realities on the river than others, the Court essentially draws conclu-
sions about the scientific viability of the evidence without any scientific
competence to do so. The Court would have been better served had it

278

relied on clearer data and obtained a more convincing analysis of the
evidence.

  (v) Nonylphenols
   83. In the case of nonylphenols and nonylphenolethoxylates, the Court
again determines that even though the presence of these substances has
been detected in areas most affected by the mill’s discharged effluents,
 here is no convincing data that the plant is using these detergents.
   84. I find it surprising that the conclusion of the Court is that there is
not enough evidence in the record as to the claim made by Argentina that
 he Orion (Botnia) mill emits or has discharged nonylphenols into the
river environment. In its Scientific and Technical Report submitted on
30 June 2009, Argentina presented extensive data showing the presence of
nonylphenols in samples of water, sediments, settling particles, Asiatic
clams and cyanobacteria found in the River Uruguay in the mill’s area of
 nfluence (New Documents submitted by Argentina, Vol. I, Scientific and
Technical Report, p. 41). The samples were taken during the 4 Febru-
ary 2009 algal bloom, but also during other periods, and all the samples
show an increase in the level of nonylphenols. Additionally, during the
oral hearings, Argentina presented an analysis of a pulp sample allegedly
 rom the Orion (Botnia) mill that showed that the pulp contained nonyl-
phenols. Uruguay never contested or rebutted these assertions by Argentina
as to this sample, and the Court similarly does not address this evidence
 n the Judgment.

  85. In addition to the affidavit from the Botnia official presented by
Uruguay, Argentina also presented the Court on 19 October 2009, in
response to the same question put forward by a judge, an affidavit pre-
pared by a Canadian expert on pulp mills that confirms Argentina’s
expert team’s findings regarding the use of nonylphenols.

  86. The Court gave weight to the self-serving testimony of the Botnia
employee that the mill does not use these detergents over evidence from
Argentina that cleaning processes related to the use of this type of wood
without detergents is almost impossible. Combined with the data that
 hese detergents have been detected in areas rich with the mill’s efflu-
ent — where they have already begun to affect the river’s fauna — the
Court’s summary conclusion seems, at the very least, unsupported by the
evidence. An independent expert on detergent use in pulp mills could
have easily determined the credibility to be given to each Party’s claims in
 his regard, but the Court decided that this amount of certainty was
unnecessary.

279

  87. I regret that the Court did not rely on all the relevant data sub-
mitted by the Parties in order to conclude that discharges from the Orion
Botnia) mill plant included nonylphenols.

  (vi) Dioxins and furans
   88. With regard to dioxins and furans, the Court again evaluates the
scientific viability of the data of Argentina and Uruguay from a lay per-
spective and without the benefit of an independent expert opinion. The
Court does not have the requisite expertise to ascertain what the appro-
priate method is for measuring dioxins and furans or whether the study
by Botnia followed scientific or industry standards and how to link the
presence of pollutants to the operation of the Orion (Botnia) mill.

  (vii) Air pollution
   89. The Court, in view of its own findings with respect to water qual-
 ty, is of the opinion that “the record does not show any clear evidence
 hat substances with harmful effects have been introduced into the aquatic
environment of the river through the emissions of the Orion (Botnia) mill
 nto the air” (Judgment, para. 264).
   90. In my view, the Court fails to take due consideration of the fact
 hat Article 36 of the 1975 Statute establishes the obligation to co-ordi-
nate through CARU the necessary measures to control “harmful factors
 n the river and the areas affected by it” and that Article 41 states the
obligation to prevent pollution. Recreational and bathing activities take
place in the river and in areas affected by it. The Digest of the uses of the
River Uruguay, in the Chapter on Pollution, defines “industrial pollu-
 ion” as “caused by gas emissions stemming from industrial activities”
 Digest, Theme E3 : Pollution, Title 1, Chap. 1, Sec. 2 : Definitions,
Art. 1 (b)), while the definition of “harmful effects” includes threats to
health and reductions in recreational activities (Chap. 1, Sec. 2).

  91. In my view, the Court fails to recognize that air pollution linked to
he Orion (Botnia) mill may affect not only the River Uruguay but also
he areas affected by it, including human health and recreational activi-
ies. The Court consequently makes no assessment of the potential impact
n this regard.

              V. Final Remarks on Substantive Obligations
   92. Given the scientific complexity of the case, it is my considered
belief that the Court should have availed itself of the provisions in its
Rules aimed at enabling the Court to gain a clearer understanding of
 echnical evidence. This approach would have allowed the Court to reach

280

 ts conclusions regarding the substantive obligations of Uruguay with sci-
entific certainty.
   93. How is the Court to fulfil its “responsibility . . . to determine which
 acts must be considered relevant, to assess their probative value, and to
draw conclusion from them” (Judgment, para. 168) in the face of the vol-
ume and complexity of the factual information submitted to it by the
Parties ? The Judgment states that “in keeping with its practice, the Court
will make its own determination of the facts” (ibid.). However, the
Court’s Statute provides that : “The Court may, at any time, entrust any
 ndividual, body, bureau, commission, or other organization that it may
select, with the task of carrying out an enquiry or giving an expert
opinion.” (Art. 50.) The Court has made use of its powers under Arti-
cle 50 twice. In the Corfu Channel case, it first appointed a committee of
 hree naval experts on a question of fact, contested between the Parties
and relevant for the question of Albania’s responsibility (Corfu Channel
(United Kingdom v. Albania), Order of 17 December 1948, I.C.J. Reports
1947-1948, p. 124 et seq.). Once the committee had submitted its report,
 he Court decided that it should proceed with an in situ examination and
submit a second report (Corfu Channel (United Kingdom v. Albania),
Merits, Judgment, I.C.J. Reports 1949, p. 151). The Court relied on the
advice of a second committee in order to assess the amount of compensa-
 ion owed to the United Kingdom. Moreover, in the Gulf of Maine case,
 he Chamber followed a request by the Parties that it appoint a technical
expert in order to assist in the delimitation of the maritime boundary
 Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), Appointment of Expert, Order of
30 March 1984, I.C.J. Reports 1984, pp. 165 et seq. and reference in the
Judgment, I.C.J. Reports 1984, p. 265, para. 18). Although the appoint-
ment was made following a request by the Parties, it came within the
scope of Article 50.
   94. The PCIJ also decided at the indemnities stage of the Chorzów
Factory case to seek expert advice before fixing the amount of compensa-
 ion (Factory at Chorzów, Merits, Order of 13 September 1928, P.C.I.J.,
Series A, No. 17, pp. 99 et seq.).
   95. In conclusion, seeking an expert opinion to resolve matters of fact
 n the light of the complexity of the evidence would have been entirely
consistent with the practice of the Court. Article 50 of the Statute was
conceived precisely for cases like the current one. The Court could and
should have called for an expert opinion to assess the scientific and fac-
 ual evidence presented by the Parties. Whatever delay might have been
caused by the additional investigation would have been outweighed by
 he Court’s increased competence to render an effective Judgment. The
Court does itself a disservice by not ensuring that its ruling is based on
 actual certainty.
   96. In my view, the Court’s own findings raise doubts concerning the
presence or absence of pollutive factors in the river associated with dis-
charges from the Orion (Botnia) mill. The Court’s conclusions, to my

281

mind, do not dispel the likelihood of a link between the Orion (Botnia)
mill and the unprecedented algal bloom in February 2009, the presence of
phenolic substances, and the detection of prohibited nonylphenols in
pulp samples and in the aquatic environment, as well as the detection of
dioxins and furans in the aquatic environment of the River Uruguay and
 n the air.
   97. Even if these factors are not considered individually by the Court
as satisfactorily established, I do strongly believe that if they were taken
 nto account as a whole these polluted discharges from the mill evidence
Uruguay’s non-compliance with its substantive obligations to ensure the
optimum and rational utilization of the River Uruguay.
   98. I would finally like to express my disappointment with the Court’s
approach when dealing with substantive obligations under the 1975 Stat-
ute. To my understanding the Court should have taken into account not
only the actual impact of the discharges from the Orion (Botnia) mill, but
also the cumulative long-term effects of those discharges in light of the
40-year lifespan of the plant. The discharges from the Orion (Botnia) mill
over its lifetime are not a mere expectation but a certainty to come. In
 hat context, the Executive Summary of Argentina’s Scientific and Tech-
nical Report submitted to the Court on 30 June 2009 states that “The
main outcome of this study is the detection of changes associated to the
pulp mill activities that could act as an early warning framework to
anticipate future major and more irreversible ecosystem damages.”
 Emphasis in the original.)

  99. As the Court has stated in the past : “the environment is not an
abstraction but represents the living space, the quality of life and the very
health of human beings, including generations unborn” (Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996 (I), p. 241, para. 29) ; and also that :

         “The Court is mindful that, in the field of environmental protec-
      tion, vigilance and prevention are required on account of the often
      irreversible character of damage to the environment and of the limi-
      tations inherent in the very mechanism of reparation of this type of
      damage.
         Throughout the ages, mankind has, for economic and other rea-
      sons, constantly interfered with nature. In the past, this was often
      done without consideration of the effects upon the environment.
      Owing to new scientific insights and to a growing awareness of the
      risks for mankind — for present and future generations — of pursuit
      of such interventions at an unconsidered and unabated pace, new
      norms and standards have been developed, set forth in a great
      number of instruments during the last two decades. Such new norms
      have to be taken into consideration, and such new standards given
      proper weight, not only when States contemplate new activities but
      also when continuing with activities begun in the past. This need to

282

      reconcile economic development with protection of the environment
      is aptly expressed in the concept of sustainable development.” (Gab-
      číkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J.
      Reports 1997, p. 78, para. 140.)

  100. In due consideration to these past findings of the Court, I regret
 hat by not taking into account the long-term effects of the already exist-
ng pollution attributable to the Orion (Botnia) mill, the Court, in my
opinion, pre-empted its opportunity to apply the precautionary principle
 o properly prevent pollution and preserve the aquatic environment of
 he River Uruguay in conformity with the 1975 Statute and general inter-
national law.

                                              (Signed) Raúl VINUESA.

283


                                                                                148

                  DECLARATION OF JUDGE TOMKA

[Original English Text]
   Agreement with the conclusions of the Court — Disagreement with the
reasoning, in particular in answering the second question — Unfortunate treatment
of the Chagossians — Role of advisory proceedings — General Assembly did not
consider the situation of the Chagos Archipelago and its population for half a
century — Bilateral dispute — Mauritius initiated the request for the Advisory
Opinion — Need for restraint in exercising advisory function relating to a bilateral
dispute — Failure to interpret properly the text of Question (a) — Law of the
Charter of the United Nations on decolonization, and not law on State responsibility,
relevant for the completion of the process of decolonization.

   1. I agree with the conclusion reached by the Court that the process of
decolonization of Mauritius was not lawfully completed when it acceded
to independence in 1968 following the separation of the Chagos Archi-
pelago in 1965. I also agree that the United Kingdom is under an obliga-
tion to bring to an end its administration of the said Archipelago. I have
deep sympathy for the unfortunate Chagossians who were removed from
the Archipelago between 1967 and 1973 against their will and who have
been prevented from returning. In the critical period when both the sepa-
ration of the Archipelago and their removal therefrom were eﬀected, they
were not represented in — and defended vigorously enough by — the
Government of Mauritius; they were in fact abandoned by the
United Nations, which, after 1968, was not interested in their destiny, as
the situation of the Chagos Archipelago and of its population was no
longer on the agenda of the General Assembly or the Special Committee
on Decolonization.
   2. To my regret, however, I cannot share the reasoning by which my
colleagues have reached the conclusion on the second question asked by
the General Assembly, as I will explain. Furthermore, I am concerned
that advisory proceedings have now become a way of bringing before the
Court contentious matters, with which the General Assembly had not
been dealing prior to requesting an opinion upon an initiative taken by
one of the parties to the dispute.
   3. One such example is the request, initiated in 2008 by Serbia, with
which the Court dealt in the advisory proceedings on Accordance with
International Law of the Unilateral Declaration of Independence in Respect
of Kosovo (Advisory Opinion, I.C.J. Reports 2010 (II), p. 403). I was in
favour of the Court exercising its discretion and not answering the ques-
tion (ibid., declaration of Vice-President Tomka, pp. 454 et seq., esp-
ecially pp. 454-456, paras. 2-9). I, and also Judge Keith (ibid., separate
opinion, pp. 482 et seq., especially p. 489, para. 17), did not see any “suf-
ﬁcient interest” for the General Assembly in requesting the Opinion (ibid.,

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                  separation of the chagos (decl. tomka)                           149

p. 455, para. 5). This was because the General Assembly was not dealing
with the issue of Kosovo, with which the Security Council was then, and
remains even today, seised. The Court expressed the view that “[t]he advi-
sory jurisdiction is not a form of judicial recourse for States but the means
by which the General Assembly . . . may obtain the Court’s opinion in
order to assist [it] in [its] activities” (I.C.J. Reports 2010 (II), p. 417,
para. 33). The Court recalled, almost in a self-gratifying way, that “its
answer to a request for an advisory opinion ‘represents its participation in
the activities of the Organization’” (ibid., p. 416, para. 30, quoting Inter-
pretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71). Did the Court really
“assist [the General Assembly] in [its] activities”? It seems not so much.
The General Assembly, in its resolution 64/298 of 9 September 2010, sim-
ply “[a]cknowledge[d] the content of the advisory opinion” without any
further action or consideration of the matter.

   4. The General Assembly has not dealt with the issue of the Chagos
Archipelago for half a century. It requested the present Advisory Opinion
in resolution 71/292 of 22 June 2017, as recalled in the Advisory Opinion
itself (para. 1). However, the crucial facts the Opinion fails to mention
relate to the history of the adoption of resolution 71/292. This history
reﬂects that there is a long-standing dispute over the Chagos Archipelago
between Mauritius and the United Kingdom, and that the Request for
the present Opinion has its origin in that very dispute. It was Mauritius
which, in 2016, requested to inscribe an additional item into the provi-
sional agenda of the seventy-ﬁrst session of the General Assembly 1. In the
explanatory memorandum that Mauritius annexed to the letter request-
ing the inclusion of this item into the agenda, Mauritius notes that the
status of the Chagos Archipelago had already been brought by it before
an arbitral tribunal acting under Part XV of the United Nations Conven-
tion on the Law of the Sea in the context of contentious proceedings
between itself and the United Kingdom. It also recalls certain ﬁndings of
that tribunal 2. Speaking in the general debate of the General Assembly,
in late September 2016, the then Prime Minister of Mauritius, Sir Anerood
Jugnauth, expressed willingness to delay consideration of the item to
allow for bilateral talks with the United Kingdom 3. The agreement to
postpone consideration of the item until at least June 2017 is reﬂected in

   1 United Nations, General Assembly, “Request for an advisory opinion of the Interna-
tional Court of Justice on the legal consequences of the separation of the Chagos Archi-
pelago from Mauritius in 1965”, UN doc. A/71/142 (14 July 2016).
   2 Ibid., Annex, para. 5.
   3 United Nations, Official Records of the General Assembly, Seventy-First Session,

Plenary Meetings, 17th meeting, A/71/PV.17, p. 39.

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                  separation of the chagos (decl. tomka)                           150

the oﬃcial records of the General Assembly 4. Accordingly, no meeting
was scheduled to deal with the request. Only when no progress had been
achieved in the eight months that followed, during which Mauritius and
the United Kingdom held three rounds of talks, did Mauritius, on 1 June
2017, ask that the item be discussed in the plenary “at the earliest date
possible” 5. It also informed the General Assembly that a draft resolution
would be tabled shortly by Mauritius. The text of the draft resolution was
prepared by Mauritius and included as part of an aide-memoire circu-
lated by its Permanent Mission in New York in May 2017 to all Member
States of the United Nations. The African Group then formally presented
this draft resolution (with no change to its text). The draft was adopted
without any modiﬁcation by a majority vote on 22 June 2017 6.

   5. It is to be recalled that, while, as the Court notes, the General
Assembly has a “long and consistent record in seeking to bring colonial-
ism to an end” (Advisory Opinion, para. 87), these eﬀorts have barely
touched on the Chagos Archipelago after Mauritius achieved indepen-
dence in 1968. Indeed, from 1969 until the request for the present Advi-
sory Opinion, the issue of the Chagos Archipelago was on neither the
agenda of the United Nations General Assembly nor that of the Special
Committee on Decolonization.
   6. The Court is, however, convinced that its replies in the present
Advisory Opinion will assist the General Assembly in the performance of
the latter’s functions and that “by replying to the Request, the Court is
[not] dealing with a bilateral dispute” (ibid., para. 89) and is, therefore,
not “circumventing the principle of consent by a State to the judicial
settlement of its dispute with another State” (ibid., para. 90). The Court is
thus willing to provide “its advice” to the General Assembly on an issue
which the latter had not considered for half a century, despite the undis-
putable role assigned to the General Assembly by the Charter of the
United Nations in matters of decolonization. If one can accept this course
of action, one must also exercise caution not to go further than what is
strictly necessary and useful for the requesting organ 7. The Court must

   4 United Nations, Official Records of the General Assembly, Seventy-First Session,

Plenary Meetings, 2nd meeting, A/71/PV.2, p. 6; United Nations, General Assembly, “First
report of the General Committee”, A/71/250 (14 September 2016), p. 14, para. 73.
   5 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius

in 1965, documents received from the Secretariat of the United Nations, Part II, letter
dated 1 June 2017 from the President of the General Assembly addressed to the Perma-
nent Representatives and Permanent Observers of the United Nations and attachment
[UN dossier No. 4].
   6 United Nations, General Assembly, draft resolution, A/71/L.73 and Add.1 (15 June

2017); United Nations, Official Records of the General Assembly, Seventy-First Session,
Plenary Meetings, 88th meeting, A/71/PV.88, pp. 17-18.
   7 Judge Owada, in a similar situation, rightly stressed that

     “the Court . . . should focus its task on oﬀering its objective ﬁndings of law to
     the extent necessary and useful to the requesting organ, the General Assembly, in

                                                                                59

                   separation of the chagos (decl. tomka)                                151

not forget that what looms in the background is a bilateral dispute over
which the Court lacks jurisdiction.
   7. The Court, in my view, has not given suﬃcient attention to the for-
mulation of the questions by the General Assembly in the two oﬃcial
languages of the Court, English and French. As a consequence, the Court
has gone further than what was required to assist the General Assembly
and intrudes upon the bilateral dispute between Mauritius and the
United Kingdom. In the ﬁrst question, the General Assembly asks: “Was
the process of decolonization of Mauritius lawfully completed when Mau-
ritius was granted independence in 1968, following the separation of the
Chagos Archipelago from Mauritius” (emphasis added). Thus, the
requesting organ was interested to know whether the process of decoloni-
zation was completed from the point of view of the applicable law, which,
as the Court states, is the law on self-determination (see Advisory Opin-
ion, para. 161). The General Assembly has not asked the Court to rule on
any possible unlawful conduct of the administering Power. The French
text of resolution 71/292, equally authentic, makes this abundantly clear
when it formulates the question in these terms: “Le processus de décolo-
nisation a-t-il été validement mené à bien lorsque Maurice a obtenu son
indépendance en 1968, à la suite de la séparation de l’archipel des Chagos
de son territoire” (emphasis added). The term “validité” is a legal term
describing whether the act in question fulﬁls all the legal requirements in
order to produce its intended consequences. The Basdevant Dictionary of
International Legal Terminology deﬁnes “validité” as “[c]aractère de ce
qui vaut, de ce qui réunit les conditions requises pour produire ses eﬀets
juridiques” 8. A more recent dictionary (known as the Salmon Dictionary)
provides a similar deﬁnition. According to it, “validité” is “[la] qualité des
éléments d’un ordre juridique qui remplissent toutes les conditions de
forme ou de fond pour produire des eﬀets juridiques” 9.

  8. The Court, despite stating that it is not “dealing with a bilateral
dispute” between Mauritius and the United Kingdom, makes an unneces-
sary pronouncement on “an unlawful act of a continuing character” of
the latter in its answer to the second question of the General Assembly
(Advisory Opinion, para. 177). Advisory proceedings are not an appro-
priate forum for making these kinds of determinations, especially when
the Court is not asked to make them and they are not strictly necessary
for providing advice to the requesting organ.

     carrying out its functions relating to this question, rather than adjudicating on the
     subject-matter of the dispute between the parties concerned” (Legal Consequences of
     the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
     I.C.J. Reports 2004 (I), separate opinion of Judge Owada, p. 265, para. 14).

   8 Dictionnaire de la terminologie du droit international, J. Basdevant (ed.), Paris, Sirey,

1960, p. 636.
   9 Dictionnaire de droit international public, J. Salmon (ed.), Brussels, Bruylant, 2001,

p. 1126.

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                   separation of the chagos (decl. tomka)                                 152

   9. In my view, the consequence under international law that follows
from the Court’s conclusion that the process of decolonization of Mauri-
tius was not lawfully completed in 1968 (“n’a pas été validement mené à
bien” 10) is that this process remains to be completed in accordance with
the obligations of the administering Power under the United Nations
Charter. The Charter, as subsequently interpreted, is a source of obliga-
tions for the administering Powers of non-self-governing territories, and
not customary rules of international law on State responsibility. More-
over, it is a more appropriate role for the General Assembly to see to it
that obligations under the Charter of the United Nations are complied
with, and not that the rules on State responsibility are implemented.
Accordingly, considering that there was no need to decide on matters of
State responsibility in order to answer the General Assembly’s second
question and to “assist it in the performance of its functions”, I am unable
to share the reasoning of the Court.
   10. The process of decolonization in relation to the Chagos Archipel-
ago can be successfully completed only in negotiations between the key
actors, in particular between Mauritius and the United Kingdom. The
highest representative of Mauritius expressed, in the spirit of realism and
being concerned about security in the region, reassurances that “the exer-
cise of eﬀective control by Mauritius over the Chagos Archipelago would
not in any way pose any threat to the military base” and that “Mauritius
is committed to the continued operation of the base in Diego Garcia
under a long-term framework, which Mauritius stands ready to enter into
with the parties concerned” 11. He reiterated this view before the Court
when he stated that “Mauritius recognizes [the] existence [of the base on
Diego Garcia] and has repeatedly made it clear to the United States and
Administering Power that it accepts the future operation of the base in
accordance with international law” 12.
   He continued, “[t]his is a solemn commitment on behalf of Mauritius
and we trust the Court will recognize it as such” 13.
   The Court, however, remained silent on this point.

                                                          (Signed) Peter Tomka.

   10 It is to be noted that the authoritative text of the Advisory Opinion is the French text.
   11 Statement of Sir Anerood Jugnauth in the General Assembly, on the occasion of
the adoption of resolution 71/292 requesting the advisory opinion. United Nations, Offi-
cial Records of the General Assembly, Seventy-First Session, Plenary Meetings, 88th meeting,
A/71/PV.88, p. 8. A similar statement was made by the Prime Minister of Mauritius,
Mr. Pravind Jugnauth, at the meeting of legal advisers in The Hague on 27 November 2017.
   12 CR 2018/20, pp. 30-31, para. 18. Reference was made to the diplomatic correspon-

dence between the Prime Ministers of Mauritius and of the United Kingdom, as well as
to the diplomatic correspondence of the Prime Minister of Mauritius and the President of
the United States.
   13 Ibid.

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