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International Court of Justice: Pulp Mills on the River Uruguay (Argentina v. Uruguay)

Published online by Cambridge University Press:  27 February 2017

Djurdja Lazić
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Type
International Legal Documents
Information
International Legal Materials , Volume 49 , Issue 4 , August 2010 , pp. 1118 - 1180
Copyright
Copyright © American Society of International Law 2010

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References

End notes

* This text was reproduced and reformatted from the text available at the International Court of Justice website (visited June 1, 2010) http://www.icj-cij.org/docket/files/135/15877.pdf.

1 Statute of the River Uruguay, No. 21425, Feb. 26, 1975, Uru.- Arg., 1982 U.N.T.S. 339, available at http://untreaty.un.org/unts/60001_120000/10/4/00018191.pdf [hereinafter 1975 Statute]. The 1975 Statute was adopted pursuant to Article 7 of the Treaty Between the Argentine Republic and the Easter Republic of Uruguay Concerning the Boundary Constituted by the River Uruguay, signed at Montevideo on April 7, 1961. See Treaty Concerning the Boundary Constituted by the River Uruguay, Arg.-Uru., art. 7, 635 U.N.T.S. 91 (1968), available at http://untreaty.un.org/unts/1_60000/18/23/00035141.pdf.

2 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, ¶ 278 (Apr. 20, 2010), available at http://www.icj-cij.org/docket/files/135/15877.pdf [hereinafter Pulp Mills Judgment]. See also World Court Rules Uruguay Can Operate Paper Mill, Reuters, Apr. 20, 2010, available at http://uk.reuters.com/article/idUKWEB0837; Mike Corders, World Court Backs Uruguay in Paper Mill Dispute, Business Week, Apr. 20, 2010, available at http://www.businessweek.com/ap/financialnews/D9F70QRG0.htm.

3 Pulp Mills Judgment, ¶ 276.

4 Id. ¶ 204.

5 Id.

6 Pulp Mills on the River Uruguay (Arg. v. Uru.), Request for Indication of Provisional Measures Order, 2006 I.C.J. 113, ¶ 48 (July 13), available at http://www.icj-cij.org/docket/files/135/11235.pdf [hereinafter 2006 Order].

7 The two projects were financed by a Spanish company, Grupo Empresarial ENCE (the “CMB project “), and by a Finnish company, Oy Metsa¨-Botnia Ab (the “Botnia project “). The CMB project was discontinued on September 21, 2006, when the project promoters announced that they would not build the mill after all.

8 2006 Order, ¶¶ 5-6.

9 Court allows Uruguay Pulp Mills, BBC News, July 13, 2006, available at http://news.bbc.co.uk/2/hi/5175420.stm.

10 Id. (reporting that “[i]n April [2006], thousands blocked traffic crossing the bridge between the two countries, while a bikiniclad beauty queen interrupted a recent summit of EU and Latin American leaders in Vienna. “).

11 Pulp Mills on the River Uruguay (Arg. v. Uru.), Application Instituting Proceedings, ¶ 4 (May 4, 2006), available at http://www.icj-cij.org/docket/files/135/10779.pdf [hereinafter Application by Argentina].

12 See id.

13 The Commission is an independent body established under the 1975 Statute art. 7.

14 Application by Argentina, ¶ 25.

15 Article 41 of the Statute of the Court and Article 73 of the Rules of the Court provide the mechanism through which parties can request the Court to order provisional measures. Under Article 41, the Court is authorized to order provisional measures in order to “preserve the respective rights of either party. “ Thus, the Court will order provisional measures if it decides, looking at the evidence presented by the parties, that the continued conduct of a party will cause “irreparable prejudice to the rights that are in dispute “ before the issuance of a final judgment. See Statute of the International Court of Justice art. 41, June 26, 1945, 3 Bevans 1179; 59 Stat. 1031, available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.

16 2006 Order, ¶¶ 14-15.

17 Id. ¶ 61.

18 Id. ¶ 73.

19 Id. ¶ 78. The Court’s decision not to order immediate removal of a project at the center of a dispute is not novel. In Passage Through the Great Belt, the Court similarly rejected a request for provisional measures, with the caveat that the “violating “ party may have to dismantle the project if the final judgment is issued against it. See Passage Through the Great Belt (Fin. v. Den.), Request for the Indication of Provisional Measures Order, 1991 I.C.J. 12, ¶ 31 (July 29) (the Court concluded that “if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled. “). See also Cymie R. Payne, Pulp Mills on the River Uruguay: The International Court of Justice Recognizes Environmental Impact Assessment as a Duty Under International Law, 14 ASIL Insights 9 (Apr. 22, 2010), available at http://www.asil.org/insights100422.cfm.

20 Before filing a request for provisional measures, Uruguay initiated a complaint under the procedures of the common market Mercosur, demanding that the government of Argentina remove the protesters. While the Mercosur ad hoc arbitration tribunal concluded that the blockades were not compatible with Argentina’s Mercosur obligations to guarantee free circulation of goods and services, it did not require Argentina to end to the blockades. See Payne, supra note 19.

21 Pulp Mills on the River Uruguay (Arg. v. Uru.), Request for Indication of Provisional Measures Order, 2007 I.C.J. 3, ¶¶ 8-10 (Jan. 23) [hereinafter 2007 Order]. 1122 INTERNATIONAL LEGAL MATERIALS [VOL. 49:

22 Id. ¶ 8.

23 Id. ¶ 13.

24 Id. ¶ 40.

25 Id. ¶ 50.

26 1975 Statute art. 60.

27 Argentina based its supplemental claims on Article 36 of the 1975 Statute, which requires the parties to coordinate to prevent “any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it. “ The Court held, however, that the plain language of this provision “leaves no doubt that it does not address the alleged noise and visual pollution as claimed by Argentina. “ The Court also held that the “bad odours “ claim failed for the same reasons. See Pulp Mills Judgment, ¶ 52.

28 Id. ¶ 68.

29 Id. ¶ 158.

30 See Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9) (noting “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States “).

31 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 29 (July 8) (the Court established that this obligation “is now part of the corpus of international law relating to the environment “)

32 Pulp Mills Judgment, ¶ 102.

33 Id.

34 Id. ¶ 173.

35 Id.

36 Id. ¶ 177.

37 Id. ¶ 265.

38 See Argentina, Uruguay Pulp Mill Row Far From Over, UPI, Apr. 22, 2010, available at http://www.upi.com/Top_News/Special/2010/04/22/Argentina-Uruguay-pulp-mill-row-farfrom-over/UPI-62721271973836/. But see Uruguay/Argentina Agree Water-monitoring Negotiations are “Not Blocked, “ MercoPress, July 27, 2010, available at http://en.mercopress.com/2010/07/27/uruguay-argentinaagree-water-monitoring-negotiations-are-not-blocked.