PULP MILLS (JUDGMENT)
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construction and operation of the mill provided by the company to
the Uruguayan Government, when these were forwarded to it by the
Uruguayan delegation.” (Emphasis in the original.) [Translation by
the Court.]
126. Uruguay considers that, under the terms of this “understanding”,
the Parties agreed on the approach to be followed in respect of the CMB
(ENCE) project, outside CARU, and that there was no reason in law or
logic to prevent them derogating from the procedures outlined in the
1975 Statute pursuant to an appropriate bilateral agreement.
The said “understanding”, according to Uruguay, only covered the
transmission to CARU of the Environmental Management Plans for the
construction and operation of the (CMB) ENCE mill. It supposedly
thereby puts an end to any dispute with Argentina regarding the procedure laid down in Article 7 of the 1975 Statute. Lastly, Uruguay maintains that the “understanding” of 2 March 2004 on the (CMB) ENCE
project was later extended to include the Orion (Botnia) project, since the
PROCEL water quality monitoring plan put in place by CARU’s Subcommittee on Water Quality to implement that “understanding” related
to the activity of “both plants”, the CMB (ENCE) and Orion (Botnia)
mills, the plural having been used in the title and text of the Subcommittee’s report.
127. Argentina, for its part, maintains that the “understanding”
between the two Ministers of 2 March 2004 was intended to ensure compliance with the procedure laid down by the 1975 Statute and thus to
reintroduce the CMB (ENCE) project within CARU, ending the dispute
on CARU’s jurisdiction to deal with the project. Argentina claims that it
reiterated to the organs within CARU that it had not given up its rights
under Article 7, although it accepted that the dispute between itself and
Uruguay in this respect could have been resolved if the procedure contemplated in the “understanding” of 2 March 2004 had been brought to
a conclusion.
According to Argentina, however, Uruguay never transmitted the
required information to CARU as it undertook to do in the “understanding” of 2 March 2004. Argentina also denies that the “understanding” of
2 March 2004 was extended to the Orion (Botnia) mill ; the reference to
both future plants in the PROCEL plan does not in any way signify, in
its view, the renunciation of the procedure laid down by the 1975 Statute.
128. The Court first notes that while the existence of the “understanding” of 2 March 2004, as minuted by CARU, has not been contested by
the Parties, they differ as to its content and scope. Whatever its specific
designation and in whatever instrument it may have been recorded (the
CARU minutes), this “understanding” is binding on the Parties, to the
extent that they have consented to it and must be observed by them in
good faith. They are entitled to depart from the procedures laid down by
the 1975 Statute, in respect of a given project pursuant to an appropriate
bilateral agreement. The Court recalls that the Parties disagree on whether
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