PULP MILLS (JUDGMENT)
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to CARU, Uruguay frustrated all the procedures laid down in Articles 7
to 12 of the Statute. In addition, by failing to notify Argentina of the
plans for the CMB (ENCE) and Orion (Botnia) mills, through CARU,
with all the necessary documentation, Uruguay is said not to have complied with Article 7, second and third paragraphs. Argentina adds that
informal contacts which it or CARU may have had with the companies
in question cannot serve as a substitute for Uruguay referring the matter
to CARU and notifying Argentina of the projects through the Commission. Argentina concludes that Uruguay has breached all of its procedural
obligations under the terms of Articles 7 to 12 of the 1975 Statute.
Uruguay, for its part, considers that referring the matter to CARU
does not impose so great a constraint as Argentina contends and that the
parties may agree, by mutual consent, to use different channels by
employing other procedural arrangements in order to engage in cooperation. It concludes from this that it has not breached the procedural
obligations laid down by the 1975 Statute, even if it has performed them
without following to the letter the formal process set out therein.
83. The Court will first examine the nature and role of CARU, and
then consider whether Uruguay has complied with its obligations to
inform CARU and to notify Argentina of its plans.
1. The nature and role of CARU
84. Uruguay takes the view that CARU, like other river commissions,
is not a body with autonomous powers, but rather a mechanism established to facilitate co-operation between the Parties. It adds that the
States which have created these river commissions are free to go outside
the joint mechanism when it suits their purposes, and that they often do
so. According to Uruguay, since CARU is not empowered to act outside
the will of the Parties, the latter are free to do directly what they have
decided to do through the Commission, and in particular may agree not
to inform it in the manner provided for in Article 7 of the 1975 Statute.
Uruguay maintains that that is precisely what happened in the present
case : the two States agreed to dispense with the preliminary review by
CARU and to proceed immediately to direct negotiations.
85. For Argentina, on the other hand, the 1975 Statute is not merely
a bilateral treaty imposing reciprocal obligations on the parties ; it
establishes an institutional framework for close and ongoing co-operation, the core and essence of which is CARU. For Argentina,
CARU is the key body for co-ordination between the Parties in virtually
all areas covered by the 1975 Statute. By failing to fulfil its obligations
in this respect, Uruguay is said to be calling the 1975 Statute fundamentally into question.
86. The Court recalls that it has already described CARU as
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