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, In
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