PULP MILLS (JUDGMENT)
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153. Argentina, on the other hand, maintains that Article 12 of the
1975 Statute makes the Court the final decision-maker where the parties
have failed to reach agreement within 180 days following the notification
referred to in Article 11. It is said to follow from Article 9 of the Statute,
interpreted in the light of Articles 11 and 12 and taking account of its
object and purpose, that if the notified party raises an objection, the
other party may neither carry out nor authorize the work in question
until the procedure laid down in Articles 7 to 12 has been completed and
the Court has ruled on the project. Argentina therefore considers that,
during the dispute settlement proceedings before the Court, the State
which is envisaging carrying out the work cannot confront the other
Party with the fait accompli of having carried it out.
Argentina argues that the question of the “veto” raised by Uruguay is
inappropriate, since neither of the parties can impose its position in
respect of the construction works and it will ultimately be for the Court
to settle the dispute, if the parties disagree, by a decision that will have
the force of res judicata. It could be said, according to Argentina, that
Uruguay has no choice but to come to an agreement with it or to await
the settlement of the dispute. Argentina contends that, by pursuing the
construction and commissioning of the Orion (Botnia) mill and port,
Uruguay has committed a continuing violation of the procedural obligations under Chapter II of the 1975 Statute.
154. The Court observes that the “no construction obligation”, said to
be borne by Uruguay between the end of the negotiation period and the
decision of the Court, is not expressly laid down by the 1975 Statute and
does not follow from its provisions. Article 9 only provides for such an
obligation during the performance of the procedure laid down in Articles 7 to 12 of the Statute.
Furthermore, in the event of disagreement between the parties on the
planned activity persisting at the end of the negotiation period, the Statute does not provide for the Court, to which the matter would be submitted by the State concerned, according to Argentina, to decide whether
or not to authorize the activity in question. The Court points out that,
while the 1975 Statute gives it jurisdiction to settle any dispute concerning its interpretation or application, it does not however confer on it the
role of deciding in the last resort whether or not to authorize the planned
activities. Consequently, the State initiating the plan may, at the end of
the negotiation period, proceed with construction at its own risk.
The Court cannot uphold the interpretation of Article 9 according to
which any construction is prohibited until the Court has given its ruling
pursuant to Articles 12 and 60.
155. 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, following the end of the negotiation period. Consequently, Article 12 can do
nothing to alter the rights and obligations of the party concerned as long
as the Court has not ruled finally on them. The Court considers that
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