PULP MILLS (JUDGMENT)
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and, secondly, whether the particular location chosen for the siting of the
plant, in this case Fray Bentos, was unsuitable for the construction of a
plant discharging industrial effluent of this nature and on this scale, or
could have a harmful impact on the river.
210. Regarding the first point, the Court has already indicated that the
Espoo Convention is not applicable to the present case (see paragraph 205
above) ; while with respect to the UNEP Goals and Principles to which
Argentina has referred, whose legal character has been described in paragraph 205 above, the Court recalls that Principle 4 (c) simply provides
that an environmental impact assessment should include, at a minimum,
“[a] description of practical alternatives, as appropriate”. It is also to be
recalled that Uruguay has repeatedly indicated that the suitability of the
Fray Bentos location was comprehensively assessed and that other possible sites were considered. The Court further notes that the IFC’s Final
Cumulative Impact Study of September 2006 (hereinafter “CIS”) shows
that in 2003 Botnia evaluated four locations in total at La Paloma, at
Paso de los Toros, at Nueva Palmira, and at Fray Bentos, before choosing Fray Bentos. The evaluations concluded that the limited amount of
fresh water in La Paloma and its importance as a habitat for birds rendered it unsuitable, while for Nueva Palmira its consideration was discouraged by its proximity to residential, recreational, and culturally
important areas, and with respect to Paso de los Toros insufficient flow
of water during the dry season and potential conflict with competing
water uses, as well as a lack of infrastructure, led to its exclusion. Consequently, the Court is not convinced by Argentina’s argument that an
assessment of possible sites was not carried out prior to the determination of the final site.
211. Regarding the second point, the Court cannot fail to note that
any decision on the actual location of such a plant along the River Uruguay should take into account the capacity of the waters of the river to
receive, dilute and disperse discharges of effluent from a plant of this
nature and scale.
212. The Court notes, with regard to the receiving capacity of the
river at the location of the mill, that the Parties disagree on the geomorphological and hydrodynamic characteristics of the river in the
relevant area, particularly as they relate to river flow, and how the
flow of the river, including its direction and its velocity, in turn
determines the dispersal and dilution of pollutants. The differing views
put forward by the Parties with regard to the river flow may be due to
the different modelling systems which each has employed to analyse
the hydrodynamic features of the River Uruguay at the Fray Bentos
location. Argentina implemented a three-dimensional modelling that
measured speed and direction at ten different depths of the river
and used a sonar — an Acoustic Doppler Current Profiler (hereafter
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