PULP MILLS (JUDGMENT)
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Fray Bentos before the expiration of the period of negotiation, Uruguay
failed to comply with the obligation to negotiate laid down by Article 12
of the Statute. Consequently, Uruguay disregarded the whole of the
co-operation mechanism provided for in Articles 7 to 12 of the 1975 Statute.
150. Given that “an obligation to negotiate does not imply an obligation to reach an agreement” (Railway Traffic between Lithuania and
Poland, Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116), it
remains for the Court to examine whether the State initiating the plan is
under certain obligations following the end of the negotiation period provided for in Article 12.
D. Uruguay’s Obligations Following the End
of the Negotiation Period
151. Article 12 refers the Parties, should they fail to reach an agreement within 180 days, to the procedure indicated in Chapter XV.
Chapter XV contains a single article, Article 60, according to which :
“Any dispute concerning the interpretation or application of the
Treaty and the Statute which cannot be settled by direct negotiations
may be submitted by either party to the International Court of Justice.
In the cases referred to in Articles 58 and 59, either party may submit any dispute concerning the interpretation or application of the
Treaty and the Statute to the International Court of Justice, when it
has not been possible to settle the dispute within 180 days following
the notification referred to in Article 59.”
152. According to Uruguay, the 1975 Statute does not give one party
a “right of veto” over the projects initiated by the other. It does not consider there to be a “no construction obligation” borne by the State initiating the projects until such time as the Court has ruled on the dispute.
Uruguay points out that the existence of such an obligation would enable
one party to block a project that was essential for the sustainable development of the other, something that would be incompatible with the
“optimum and rational utilization of the [r]iver”. On the contrary, for
Uruguay, in the absence of any specific provision in the 1975 Statute, reference should be made to general international law, as reflected in the
2001 draft Articles of the International Law Commission on Prevention
of Transboundary Harm from Hazardous Activities (Yearbook of the
International Law Commission, 2001, Vol. II, Part Two) ; in particular,
draft Article 9, paragraph 3, concerning “Consultations on preventive
measures”, states that “[i]f the consultations . . . fail to produce an agreed
solution, the State of origin shall nevertheless take into account the interests of the State likely to be affected in case it decides to authorize the
activity to be pursued . . .”.
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