Invitado Viejo Golanchik Publicado 20 de Abril del 2010 Share Publicado 20 de Abril del 2010 (editado) 20 AVRIL 2010 ARRÊT AFFAIRE RELATIVE À DES USINES DE PÂTE À PAPIER SUR LE FLEUVE URUGUAY (ARGENTINE c. URUGUAY) ___________ CASE CONCERNING PULP MILLS ON THE RIVER URUGUAY (ARGENTINA v. URUGUAY) 20 APRIL 2010 JUDGMENT TABLE OF CONTENTS Paragraphs CHRONOLOGY OF THE PROCEDURE 1-24 I. LEGAL FRAMEWORK AND FACTS OF THE CASE 25-47 A. Legal framework 26-27 B. CMB (ENCE) Project 28-36 C. Orion (Botnia) mill 37-47 II. SCOPE OF THE COURT’S JURISDICTION 48-66 III. THE ALLEGED BREACH OF PROCEDURAL OBLIGATIONS 67-158 A. The links between the procedural obligations and the substantive obligations 71-79 B. The procedural obligations and their interrelation 80-122 1. The nature and role of CARU 84-93 2. Uruguay’s obligation to inform CARU 94-111 3. Uruguay’s obligation to notify the plans to the other party 112-122 C. Whether the Parties agreed to derogate from the procedural obligations set out in the 1975 Statute 123-150 1. The “understanding” of 2 March 2004 between Argentina and Uruguay 125-131 2. The agreement setting up the High-Level Technical Group (the GTAN) 132-150 D. Uruguay’s obligations following the end of the negotiation period 151-158 IV. SUBSTANTIVE OBLIGATIONS 159-266 A. Burden of proof and expert evidence 160-168 B. Alleged violations of substantive obligations 169-266 1. The obligation to contribute to the optimum and rational utilization of the river (Article 1) 170-177 2. The obligation to ensure that the management of the soil and woodland does not impair the régime of the river or the quality of its waters (Article 35) 178-180 3. The obligation to co-ordinate measures to avoid changes in the ecological balance (Article 36) 181-189 - ii - 4. The obligation to prevent pollution and preserve the aquatic environment (Article 41) 190-202 (a) Environmental Impact Assessment 203-219 (i) The siting of the Orion (Botnia) mill at Fray Bentos 207-214 (ii) Consultation of the affected populations 215-219 (b) Question of the production technology used in the Orion (Botnia) mill 220-228 © Impact of the discharges on the quality of the waters of the river 229-259 (i) Dissolved oxygen 238-239 (ii) Phosphorus 240-250 (iii) Phenolic substances 251-254 (iv) Presence of nonylphenols in the river environment 255-257 (v) Dioxins and furans 258-259 (d) Effects on biodiversity 260-262 (e) Air pollution 263-264 (f) Conclusions on Article 41 265 (g) Continuing obligations: monitoring 266 V. THE CLAIMS MADE BY THE PARTIES IN THEIR FINAL SUBMISSIONS 267-281 OPERATIVE CLAUSE 282 ___________ ABBREVIATIONS AND ACRONYMS AAP “Autorización Ambiental Previa” (Initial environmental authorization) ADCP Acoustic Doppler Current Profiler AOX Adsorbable Organic Halogens BAT Best Available Techniques (or Technology) Botnia “Botnia S.A.” and “Botnia Fray Bentos S.A.” (two companies formed under Uruguayan law by the Finnish company Oy Metsä-Botnia AB) CARU “Comisión Administradora del Río Uruguay” (Administrative Commission of the River Uruguay) CIS Cumulative Impact Study (prepared in September 2006 at the request of the International Finance Corporation) CMB “Celulosas de M’Bopicuá S.A.” (a company formed under Uruguayan law by the Spanish company ENCE) CMB (ENCE) Pulp mill planned at Fray Bentos by the Spanish company ENCE, which formed the Uruguayan company CMB for that purpose DINAMA “Dirección Nacional de Medio Ambiente” (National Directorate for the Environment of the Uruguayan Government) ECF Elemental-Chlorine-Free EIA Environmental Impact Assessment ENCE “Empresa Nacional de Celulosas de España” (Spanish company which formed the company CMB under Uruguayan law) ESAP Environmental and Social Action Plan GTAN “Grupo Técnico de Alto Nivel” (High-Level Technical Group established in 2005 by Argentina and Uruguay to resolve their dispute over the CMB (ENCE) and Orion (Botnia) mills) IFC International Finance Corporation IPPC-BAT Integrated Pollution Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper Industry MVOTMA “Ministerio de Vivienda, Ordenamiento Territorial y Medio Ambiente” (Uruguayan Ministry of Housing, Land Use Planning and Environmental Affairs) Orion (Botnia) Pulp mill built at Fray Bentos by the Finnish company Oy Metsä-Botnia AB, which formed the Uruguayan companies Botnia S.A. and Botnia Fray Bentos S.A. for that purpose OSE “Obras Sanitarias del Estado” (Uruguay’s State Agency for Sanitary Works) POPs Persistent Organic Pollutants PROCEL “Plan de Monitoreo de la Calidad Ambiental en el Río Uruguay en Áreas de Plantas Celulósicas” (Plan for monitoring water quality in the area of the pulp mills set up under CARU) PROCON “Programa de Calidad de Aguas y Control de la Contaminación del Río Uruguay” (Water quality and pollution control programme set up under CARU) ___________ INTERNATIONAL COURT OF JUSTICE YEAR 2010 2010 20 April General List No. 135 20 April 2010 CASE CONCERNING PULP MILLS ON THE RIVER URUGUAY (ARGENTINA v. URUGUAY) Legal framework and facts of the case. 1961 Treaty of Montevideo — 1975 Statute of the River Uruguay ⎯ Establishment of the Administrative Commission of the River Uruguay (CARU) ⎯ CMB (ENCE) pulp mill project ⎯ Orion (Botnia) pulp mill project ⎯ Port terminal at Nueva Palmira — Subject of the dispute. * Scope of the Court’s jurisdiction. Compromissory clause (Article 60 of the 1975 Statute) — Provisions of the 1975 Statute and jurisdiction ratione materiae — Lack of jurisdiction for the Court to consider allegations concerning noise and visual pollution or bad odours (Article 36 of the 1975 Statute) — Air pollution and impact on the quality of the waters of the river addressed under substantive obligations. Article 1 of the 1975 Statute — Definition of the purpose of the 1975 Statute — Joint machinery necessary for the optimum and rational utilization of the river — Significance of the reference to the “rights and obligations arising from treaties and other international agreements in force for each of the parties” — Original Spanish text — Statute adopted by the parties in observance of their respective international commitments. - 2 - Article 41 (a) of the 1975 Statute — Original Spanish text — Absence of a “referral clause” having the effect of incorporating within the ambit of the Statute the obligations of the parties under international agreements and other norms envisaged in the Statute — Obligation for the parties to exercise their regulatory powers, in conformity with applicable international agreements, for the protection and preservation of the aquatic environment of the River Uruguay — Rules for interpreting the 1975 Statute — Article 31 of the Vienna Convention on the Law of Treaties — Distinction between taking account of other international rules in the interpretation of the 1975 Statute and the scope of the jurisdiction of the Court under Article 60 of the latter. * Alleged breach of procedural obligations. Question of links between the procedural obligations and the substantive obligations — Object and purpose of the 1975 Statute — Optimum and rational utilization of the River Uruguay — Sustainable development — Co-operation between the parties in jointly managing the risks of damage to the environment — Existence of a functional link, in regard to prevention, between the procedural obligations and the substantive obligations — Responsibility in the event of breaches of either category. Interrelation of the various procedural obligations laid down by Articles 7 to 12 of the 1975 Statute — Original Spanish text of Article 7 — Obligation to inform, notify and negotiate as an appropriate means of achieving the objective of optimum and rational utilization of the river as a shared resource — Legal personality of CARU — Central role of CARU in the joint management of the river and obligation of the parties to co-operate. Obligation to inform CARU (Article 7, first paragraph, of the 1975 Statute) — Works subject to this obligation — Link between the obligation to inform CARU, co-operation between the parties and the obligation of prevention — Determination by CARU on a preliminary basis of whether there is a risk of significant damage to the other party — Content of the information to be transmitted to CARU — Obligation to inform CARU before issuing of the initial environmental authorization — Provision of information to CARU by private operators cannot substitute for the obligation to inform laid down by the 1975 Statute — Breach by Uruguay of the obligation to inform CARU. Obligation to notify the plans to the other party (Article 7, second and third paragraphs, of the 1975 Statute) — Need for a full environmental impact assessment (EIA) — Notification of the EIA to the other party, through CARU, before any decision on the environmental viability of the plan — Breach by Uruguay of the obligation to notify the plans to Argentina. Question of whether the Parties agreed to derogate from the procedural obligations — “Understanding” of 2 March 2004 — Content and scope — Since Uruguay did not comply with it, the “understanding” cannot be regarded as having had the effect of exempting Uruguay from compliance with the procedural obligations — Agreement setting up the High-Level Technical - 3 - Group (GTAN) — Referral to the Court on the basis of Article 12 or Article 60 of the 1975 Statute: no practical distinction — The agreement to set up the GTAN had the aim of enabling the negotiations provided for in Article 12 of the 1975 Statute to take place, but did not derogate from other procedural obligations — In accepting the creation of the GTAN, Argentina did not give up the procedural rights belonging to it by virtue of the Statute, nor the possibility of invoking Uruguay’s responsibility; nor did Argentina consent to suspending the operation of the procedural provisions of the Statute (Article 57 of the Vienna Convention on the Law of Treaties) — Obligation to negotiate in good faith — “No construction obligation” during the negotiation period — Preliminary work approved by Uruguay — Breach by Uruguay of the obligation to negotiate laid down by Article 12 of the 1975 Statute. Obligations of Uruguay following the end of the negotiation period — Scope of Article 12 of the 1975 Statute — Absence of a “no construction obligation” following the end of the negotiation period and during the judicial settlement phase. * Alleged breaches of substantive obligations. Burden of proof — Precautionary approach without reversal of the burden of proof — Expert evidence — Reports commissioned by the Parties — Independence of experts — Consideration of the facts by the Court — Experts appearing as counsel at the hearings — Question of witnesses, experts and expert witnesses. Optimum and rational utilization of the River Uruguay — Article 1 of the 1975 Statute sets out the purpose of the instrument and does not lay down specific rights and obligations — Obligation to comply with the obligations prescribed by the Statute for the protection of the environment and the joint management of the river — Regulatory function of CARU — Interconnectedness between equitable and reasonable utilization of the river as a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development (Article 27 of the 1975 Statute). Obligation to ensure that the management of the soil and woodland does not impair the régime of the river or the quality of its waters (Article 35 of the 1975 Statute) — Contentions of Argentina not established. Obligation to co-ordinate measures to avoid changes to the ecological balance (Article 36 of the 1975 Statute) — Requirement of individual action by each party and co-ordination through CARU — Obligation of due diligence — Argentina has not convincingly demonstrated that Uruguay has refused to engage in the co-ordination envisaged by Article 36 of the 1975 Statute. Obligation to prevent pollution and preserve the aquatic environment — Normative content of Article 41 of the 1975 Statute — Obligation for each party to adopt rules and measures to protect and preserve the aquatic environment and, in particular, to prevent pollution — The rules and measures prescribed by each party must be in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of - 4 - international technical bodies — Due diligence obligation to prescribe rules and measures and to apply them — Definition of pollution given in Article 40 of the 1975 Statute — Regulatory action of CARU (Article 56 of the 1975 Statute), complementing that of each party — CARU Digest — Rules by which the existence of any harmful effects is to be determined: 1975 Statute, CARU Digest, domestic law of each party within the limits prescribed by the 1975 Statute. Environmental impact assessment (EIA) — Obligation to conduct an EIA — Scope and content of the EIA — Referral to domestic law — Question of the choice of mill site as part of the EIA — The Court is not convinced by Argentina’s argument that an assessment of possible sites was not carried out — Receiving capacity of the river at Fray Bentos and reverse flows — The CARU water quality standards take account of the geomorphological and hydrological characteristics of the river and the receiving capacity of its waters — Question of consultation of the affected populations as part of the EIA — No legal obligation to consult the affected populations arises from the instruments invoked by Argentina — Consultation by Uruguay of the affected populations did indeed take place. Production technology used in the Orion (Botnia) mill — No evidence to support Argentina’s claim that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges of effluent for each tonne of pulp produced — From the data collected after the start-up of the Orion (Botnia) mill, it does not appear that the discharges from it have exceeded the prescribed limits. Impact of the discharges on the quality of the waters of the river — Post-operational monitoring — Dissolved oxygen — Phosphorus — Algal blooms — Phenolic substances — Presence of nonylphenols in the river environment — Dioxins and furans — Alleged breaches not established. Effects on biodiversity — Insufficient evidence to conclude that Uruguay breached the obligation to protect the aquatic environment, including its fauna and flora. Air pollution — Indirect pollution from deposits into the aquatic environment — Insufficient evidence. On the basis of the evidence submitted, no breach by Uruguay of Article 41 of the 1975 Statute. Continuing obligations: monitoring — Obligation of the Parties to enable CARU to exercise on a continuous basis the powers conferred on it by the 1975 Statute — Obligation of Uruguay to continue monitoring the operation of the Orion (Botnia) plant — Obligation of the Parties to continue their co-operation through CARU. * - 5 - Claims made by the Parties in their final submissions. Claims of Argentina — Breach of procedural obligations — Finding of wrongful conduct and satisfaction — Forms of reparation other than compensation not excluded by the 1975 Statute — Restitution as a form of reparation for injury — Definition — Limits — Form of reparation appropriate to the injury suffered, taking into account the nature of the wrongful act — Restitution in the form of the dismantling of the Orion (Botnia) mill not appropriate where only breaches of procedural obligations have occurred — No breach of substantive obligations and rejection of Argentina’s other claims — No special circumstances requiring the ordering of assurances and guarantees of non-repetition. Uruguay’s request for confirmation of its right to continue operating the Orion (Botnia) plant — No practical significance. * Obligation of the Parties to co-operate with each other, on the terms set out in the 1975 Statute, to ensure the achievement of its object and purpose — Joint action of the Parties through CARU and establishment of a real community of interests and rights in the management of the River Uruguay and in the protection of its environment. JUDGMENT Present: Vice-President TOMKA, Acting President; Judges KOROMA, AL-KHASAWNEH, SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREENWOOD; Judges ad hoc TORRES BERNÁRDEZ, VINUESA; Registrar COUVREUR. In the case concerning pulp mills on the River Uruguay, between the Argentine Republic, represented by H.E. Ms Susana Ruiz Cerutti, Ambassador, Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship, as Agent; - 6 - H.E. Mr. Horacio A. Basabe, Ambassador, Director of the Argentine Institute for Foreign Service, former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship, Member of the Permanent Court of Arbitration, H.E. Mr. Santos Goñi Marenco, Ambassador of the Argentine Republic to the Kingdom of the Netherlands, as Co-Agents; Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and former Chairman of the International Law Commission, associate member of the Institut de droit international, Mr. Philippe Sands, Q.C., Professor of International Law at University College London, Barrister at Matrix Chambers, London, Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, associate member of the Institut de droit international, Ms Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva, Mr. Alan Béraud, Minister at the Embassy of the Argentine Republic to the European Union, former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship, Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense, as Counsel and Advocates; Mr. Homero Bibiloni, Federal Secretary for the Environment and Sustainable Development, as Governmental Authority; Mr. Esteban Lyons, National Director of Environmental Control, Secretariat of the Environment and Sustainable Development, Mr. Howard Wheater, Ph.D. in Hydrology from Bristol University, Professor of Hydrology at Imperial College and Director of the Imperial College Environment Forum, Mr. Juan Carlos Colombo, Ph.D. in Oceanography from the University of Quebec, Professor at the Faculty of Sciences and Museum of the National University of La Plata, Director of the Laboratory of Environmental Chemistry and Biogeochemistry at the National University of La Plata, Mr. Neil McIntyre, Ph.D. in Environmental Engineering, Senior Lecturer in Hydrology at Imperial College London, - 7 - Ms Inés Camilloni, Ph.D. in Atmospheric Sciences, Professor of Atmospheric Sciences in the Faculty of Sciences of the University of Buenos Aires, Senior Researcher at the National Research Council (CONICET), Mr. Gabriel Raggio, Doctor in Technical Sciences of the Swiss Federal Institute of Technology Zurich (ETHZ) (Switzerland), Independent Consultant, as Scientific Advisers and Experts; Mr. Holger Martinsen, Minister at the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Mr. Mario Oyarzábal, Embassy Counsellor, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Mr. Fernando Marani, Second Secretary, Embassy of the Argentine Republic in the Kingdom of the Netherlands, Mr. Gabriel Herrera, Embassy Secretary, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Ms Cynthia Mulville, Embassy Secretary, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Ms Kate Cook, Barrister at Matrix Chambers, London, specializing in environmental law and law relating to development, Ms Mara Tignino, Ph.D. in Law, Researcher at the University of Geneva, Mr. Magnus Jesko Langer, teaching and research assistant, Graduate Institute of International and Development Studies, Geneva, as Legal Advisers, and the Eastern Republic of Uruguay, represented by H.E. Mr. Carlos Gianelli, Ambassador of the Eastern Republic of Uruguay to the United States of America, as Agent; H.E. Mr. Carlos Mora Medero, Ambassador of the Eastern Republic of Uruguay to the Kingdom of the Netherlands, as Co-Agent; - 8 - Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, Member of the English Bar, Mr. Luigi Condorelli, Professor at the Faculty of Law, University of Florence, Mr. Lawrence H. Martin, Foley Hoag LLP, Member of the Bars of the United States Supreme Court, the District of Columbia and the Commonwealth of Massachusetts, Mr. Stephen C. McCaffrey, Professor at the McGeorge School of Law, University of the Pacific, California, former Chairman of the International Law Commission and Special Rapporteur for the Commission’s work on the law of non-navigational uses of international watercourses, Mr. Alberto Pérez Pérez, Professor in the Faculty of Law, University of the Republic, Montevideo, Mr. Paul S. Reichler, Foley Hoag LLP, Member of the Bars of the United States Supreme Court and the District of Columbia, as Counsel and Advocates; Mr. Marcelo Cousillas, Legal Counsel at the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Mr. César Rodriguez Zavalla, Chief of Cabinet, Ministry of Foreign Affairs, Mr. Carlos Mata, Deputy Director of Legal Affairs, Ministry of Foreign Affairs, Mr. Marcelo Gerona, Counsellor at the Embassy of the Eastern Republic of Uruguay in the Kingdom of the Netherlands, Mr. Eduardo Jiménez de Aréchaga, Attorney at law, admitted to the Bar of the Eastern Republic of Uruguay and Member of the Bar of New York, Mr. Adam Kahn, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts, Mr. Andrew Loewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts, Ms Analia Gonzalez, LL.M., Foley Hoag LLP, admitted to the Bar of the Eastern Republic of Uruguay, Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and New York, Ms Cicely Parseghian, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts, Mr. Pierre Harcourt, Ph.D. candidate, University of Edinburgh, - 9 - Mr. Paolo Palchetti, Associate Professor at the School of Law, University of Macerata, Ms Maria E. Milanes-Murcia, M.A., LL.M., J.S.D. Candidate at the McGeorge School of Law, University of the Pacific, California, Ph.D. Candidate, University of Murcia, admitted to the Bar of Spain, as Assistant Counsel; Ms Alicia Torres, National Director for the Environment at the Ministry of Housing, Land Use Planning and Environmental Affairs Mr. Eugenio Lorenzo, Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Mr. Cyro Croce, Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Ms Raquel Piaggio, State Agency for Sanitary Works (OSE), Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Mr. Charles A. Menzie, Ph.D., Principal Scientist and Director of the EcoSciences Practice at Exponent, Inc., Alexandria, Virginia, Mr. Neil McCubbin, Eng., B.Sc. (Eng.), 1st Class Honours, Glasgow, Associate of the Royal College of Science and Technology, Glasgow, as Scientific Advisers and Experts, THE COURT, composed as above, after deliberation, delivers the following Judgment: 1. On 4 May 2006, the Argentine Republic (hereinafter “Argentina”) filed in the Registry of the Court an Application instituting proceedings against the Eastern Republic of Uruguay (hereinafter “Uruguay”) in respect of a dispute concerning the breach, allegedly committed by Uruguay, of obligations under the Statute of the River Uruguay (United Nations, Treaty Series (UNTS), Vol. 1295, No. I-21425, p. 340), a treaty signed by Argentina and Uruguay at Salto (Uruguay) on 26 February 1975 and having entered into force on 18 September 1976 (hereinafter the “1975 Statute”); in the Application, Argentina stated that this breach arose out of “the authorization, construction and future commissioning of two pulp mills on the River Uruguay”, with reference in particular to “the effects of such activities on the quality of the waters of the River Uruguay and on the areas affected by the river”. In its Application, Argentina, referring to Article 36, paragraph 1, of the Statute of the Court, seeks to found the jurisdiction of the Court on Article 60, paragraph 1, of the 1975 Statute. - 10 - 2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Registrar communicated the Application forthwith to the Government of Uruguay. In accordance with paragraph 3 of that Article, the Secretary-General of the United Nations was notified of the filing of the Application. 3. On 4 May 2006, immediately after the filing of the Application, Argentina also submitted a request for the indication of provisional measures based on Article 41 of the Statute and Article 73 of the Rules of Court. In accordance with Article 73, paragraph 2, of the Rules of Court, the Registrar transmitted a certified copy of this request forthwith to the Government of Uruguay. 4. On 2 June 2006, Uruguay transmitted to the Court a CD-ROM containing the electronic version of two volumes of documents relating to the Argentine request for the indication of provisional measures, entitled “Observations of Uruguay” (of which paper copies were subsequently received); a copy of these documents was immediately sent to Argentina. 5. On 2 June 2006, Argentina transmitted to the Court various documents, including a video recording, and, on 6 June 2006, it transmitted further documents; copies of each series of documents were immediately sent to Uruguay. 6. On 6 and 7 June 2006, various communications were received from the Parties, whereby each Party presented the Court with certain observations on the documents submitted by the other Party. Uruguay objected to the production of the video recording submitted by Argentina. The Court decided not to authorize the production of that recording at the hearings. 7. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them exercised its right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Argentina chose Mr. Raúl Emilio Vinuesa, and Uruguay chose Mr. Santiago Torres Bernárdez. 8. By an Order of 13 July 2006, the Court, having heard the Parties, found “that the circumstances, as they [then] present[ed] themselves to [it], [we]re not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”. 9. By another Order of the same date, the Court, taking account of the views of the Parties, fixed 15 January 2007 and 20 July 2007, respectively, as the time-limits for the filing of a Memorial by Argentina and a Counter-Memorial by Uruguay; those pleadings were duly filed within the time-limits so prescribed. 10. On 29 November 2006, Uruguay, invoking Article 41 of the Statute and Article 73 of the Rules of Court, in turn submitted a request for the indication of provisional measures. In accordance with Article 73, paragraph 2, of the Rules of Court, the Registrar transmitted a certified copy of this request forthwith to the Argentine Government. - 11 - 11. On 14 December 2006, Uruguay transmitted to the Court a volume of documents concerning the request for the indication of provisional measures, entitled “Observations of Uruguay”; a copy of these documents was immediately sent to Argentina. 12. On 18 December 2006, before the opening of the oral proceedings, Argentina transmitted to the Court a volume of documents concerning Uruguay’s request for the indication of provisional measures; the Registrar immediately sent a copy of these documents to the Government of Uruguay. 13. By an Order of 23 January 2007, the Court, having heard the Parties, found “that the circumstances, as they [then] present[ed] themselves to [it], [we]re not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures”. 14. By an Order of 14 September 2007, the Court, taking account of the agreement of the Parties and of the circumstances of the case, authorized the submission of a Reply by Argentina and a Rejoinder by Uruguay, and fixed 29 January 2008 and 29 July 2008 as the respective time-limits for the filing of those pleadings. The Reply of Argentina and the Rejoinder of Uruguay were duly filed within the time-limits so prescribed. 15. By letters dated 16 June 2009 and 17 June 2009 respectively, the Governments of Uruguay and Argentina notified the Court that they had come to an agreement for the purpose of producing new documents pursuant to Article 56 of the Rules of Court. By letters of 23 June 2009, the Registrar informed the Parties that the Court had decided to authorize them to proceed as they had agreed. The new documents were duly filed within the agreed time-limit. 16. On 15 July 2009, each of the Parties, as provided for in the agreement between them and with the authorization of the Court, submitted comments on the new documents produced by the other Party. Each Party also filed documents in support of these comments. 17. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court decided, after ascertaining the views of the Parties, that copies of the pleadings and documents annexed would be made available to the public as from the opening of the oral proceedings. 18. By letter of 15 September 2009, Uruguay, referring to Article 56, paragraph 4, of the Rules of Court and to Practice Direction IXbis, communicated documents to the Court, forming part of publications readily available, on which it intended to rely during the oral proceedings. Argentina made no objection with regard to these documents. 19. By letter of 25 September 2009, the Argentine Government, referring to Article 56 of the Rules of Court and to Practice Direction IX, paragraph 2, sent new documents to the Registry which it wished to produce. By letter of 28 September 2009, the Government of Uruguay informed the Court that it was opposed to the production of these documents. It further indicated that if, - 12 - nevertheless, the Court decided to admit the documents in question into the record of the case, it would present comments on them and submit documents in support of those comments. By letters dated 28 September 2009, the Registrar informed the Parties that the Court did not consider the production of the new documents submitted by the Argentine Government to be necessary within the meaning of Article 56, paragraph 2, of the Rules of Court, and that it had not moreover identified any exceptional circumstance (Practice Direction IX, paragraph 3) which justified their<
Publicaciones recomendadas