PULP MILLS (JUDGMENT)
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operations have started and, where necessary, throughout the life of the
project, continuous monitoring of its effects on the environment shall be
undertaken.
206. The Court has already considered the role of the environmental
impact assessment in the context of the procedural obligations of the
Parties under the 1975 Statute (paragraphs 119 and 120). It will now deal
with the specific points in dispute with regard to the role of this type of
assessment in the fulfilment of the substantive obligations of the Parties,
that is to say, first, whether such an assessment should have, as a matter
of method, necessarily considered possible alternative sites, taking into
account the receiving capacity of the river in the area where the plant was
to be built and, secondly, whether the populations likely to be affected, in
this case both the Uruguayan and Argentine riparian populations, should
have, or have in fact, been consulted in the context of the environmental
impact assessment.
(i) The siting of the Orion (Botnia) mill at Fray Bentos
207. According to Argentina, one reason why Uruguay’s environmental impact assessment is inadequate is that it contains no analysis of alternatives for the choice of the mill site, whereas the study of alternative
sites is required under international law (UNEP Goals and Principles,
Espoo Convention, IFC Operational Policy 4.01). Argentina contends
that the chosen site is particularly sensitive from an ecological point of
view and unconducive to the dispersion of pollutants “[b]ecause of the
nature of the waters which will receive the pollution, the propensity of
the site to sedimentation and eutrophication, the phenomenon of reverse
flow and the proximity of the largest settlement on the River Uruguay”.
208. Uruguay counters that the Fray Bentos site was initially chosen
because of the particularly large volume of water in the river at that
location, which would serve to promote effluent dilution. Uruguay
adds that the site is moreover easily accessible for river navigation, which
facilitates delivery of raw materials, and local manpower is available
there. Uruguay considers that, if there is an obligation to consider
alternative sites, the instruments invoked for that purpose by Argentina
do not require alternative locations to be considered as part of an
environmental impact assessment unless it is necessary in the circumstances to do so. Finally, Uruguay affirms that in any case it did so
and that the suitability of the Orion (Botnia) site was comprehensively
assessed.
209. The Court will now consider, first, whether Uruguay failed to
exercise due diligence in conducting the environmental impact assessment, particularly with respect to the choice of the location of the plant
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