PULP MILLS (JUDGMENT)
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“ADCP”) — to record water flow velocities for a range of depths for
about a year. The three-dimensional system generated a large number of
data later introduced in a numerical hydrodynamic model. On the
other hand, Botnia based its environmental impact assessment on a bidimensional modelling — the RMA2. The EcoMetrix CIS implemented
both three-dimensional and bi-dimensional models. However, it
is not mentioned whether an ADCP sonar was used at different
depths.
213. The Court sees no need to go into a detailed examination of the
scientific and technical validity of the different kinds of modelling, calibration and validation undertaken by the Parties to characterize the rate
and direction of flow of the waters of the river in the relevant area. The
Court notes however that both Parties agree that reverse flows occur frequently and that phenomena of low flow and stagnation may be observed
in the concerned area, but that they disagree on the implications of this
for the discharges from the Orion (Botnia) mill into this area of the river.
214. The Court considers that in establishing its water quality standards in accordance with Articles 36 and 56 of the 1975 Statute, CARU
must have taken into account the receiving capacity and sensitivity of the
waters of the river, including in the areas of the river adjacent to Fray
Bentos. Consequently, in so far as it is not established that the discharges
of effluent of the Orion (Botnia) mill have exceeded the limits set by those
standards, in terms of the level of concentrations, the Court finds itself
unable to conclude that Uruguay has violated its obligations under the
1975 Statute. Moreover, neither of the Parties has argued before the
Court that the water quality standards established by CARU have not
adequately taken into consideration the geomorphological and hydrological characteristics of the river and the capacity of its waters to disperse and dilute different types of discharges. The Court is of the opinion
that, should such inadequacy be detected, particularly with respect to certain areas of the river such as at Fray Bentos, the Parties should initiate
a review of the water quality standards set by CARU and ensure that
such standards clearly reflect the characteristics of the river and are capable of protecting its waters and its ecosystem.
(ii) Consultation of the affected populations
215. The Parties disagree on the extent to which the populations
likely to be affected by the construction of the Orion (Botnia) mill,
particularly on the Argentine side of the river, were consulted in the
course of the environmental impact assessment. While both Parties
agree that consultation of the affected populations should form part
of an environmental impact assessment, Argentina asserts that international law imposes specific obligations on States in this regard.
In support of this argument, Argentina points to Articles 2.6 and 3.8 of
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