PULP MILLS (JUDGMENT)
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to the environment and of the limitations inherent in the very
mechanism of reparation of this type of damage” (GabčíkovoNagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports
1997, p. 78, para. 140).
186. The Parties also disagree with respect to the nature of the obligation laid down in Article 36, and in particular whether it is an obligation
of conduct or of result. Argentina submits that, on a plain meaning,
both Articles 36 and 41 of the 1975 Statute establish an obligation
of result.
187. The Court considers that the obligation laid down in Article 36 is
addressed to both Parties and prescribes the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes
to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an
obligation of conduct. Both Parties are therefore called upon, under Article 36, to exercise due diligence in acting through the Commission for the
necessary measures to preserve the ecological balance of the river.
188. This vigilance and prevention is all the more important in the
preservation of the ecological balance, since the negative impact of
human activities on the waters of the river may affect other components
of the ecosystem of the watercourse such as its flora, fauna, and soil. The
obligation to co-ordinate, through the Commission, the adoption of the
necessary measures, as well as their enforcement and observance, assumes,
in this context, a central role in the overall system of protection of the
River Uruguay established by the 1975 Statute. It is therefore of crucial
importance that the Parties respect this obligation.
189. In light of the above, the Court is of the view that Argentina has
not convincingly demonstrated that Uruguay has refused to engage in
such co-ordination as envisaged by Article 36, in breach of that provision.
4. The obligation to prevent pollution and preserve the aquatic environment (Article 41)
190. Article 41 provides that :
“Without prejudice to the functions assigned to the Commission
in this respect, the parties undertake :
(a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate
rules and [adopting appropriate] measures in accordance with
applicable international agreements and in keeping, where rele67