International law - I.C.J. maintains high evidentiary standard in granting requests for indication of provisional measures: Argentina v. Uruguay: request for the indication of provisional measures, January 23, 2007.

• Author: Roy, Tyson

In 2006, Argentina brought suit in the International Court of Justice (I.C.J.) claiming that Uruguayan-sanctioned pulp mill developments along the River Uruguay violated the Statute of the River Uruguay, a treaty entered into by both countries for the express purpose of optimizing river utilization and maintenance. (1) In response to the mill construction and consequent I.C.J. litigation, groups of Argentine citizens established blockades along major trans-border thoroughfares, prompting Uruguay to request I.C.J. provisional measures requiring Argentina to disband the citizen groups because the blockades were irreparably harming Uruguay's contested right to develop the mills. (2) In Argentina v. Uruguay: Request for the Indication of Provisional Measures, (3) the court considered whether the I.C.J. should grant Uruguay's requests for provisional measures even though Uruguay had introduced no evidence that the blockades directly affected mill development, but rather that the Argentine actions had a substantial affect on tourist travel therefore forcing Uruguay to choose between its tourism and industrial industries. (4) After establishing its jurisdiction to rule on the Uruguayan request, (5) the I.C.J. held that Uruguay had not produced sufficient evidence to demonstrate that either its tourism or industrial industries were suffering irreparable prejudice or harm. (6)

In 2003 and 2005, the Uruguayan government allegedly granted permission to various foreign developers to construct pulp mills along the banks of the River Uruguay. (7) In response to the industrial projects, Argentina brought an action against Uruguay in the I.C.J., claiming that Uruguay failed to comply with the procedures specified in the Statute of the River Uruguay, specifically the treaty's notification and consultation requirements. (8) Further, Argentina included a request for the I.C.J. to indicate provisional measures requiring Uruguay to take steps to suspend development of the various mill projects and refrain from taking further unilateral action until the I.C.J. has fully resolved the dispute. (9) The I.C.J. consequently denied Argentina's request for provisional measures, holding that Argentina had not introduced sufficient evidence to demonstrate that the mill construction would cause immediate irreparable damage to the aquatic environment of the River Uruguay. (10)

In November of 2006, Uruguay filed its own request for indication of provisional measures, claiming that groups of Argentine citizens had setup blockades along major roads and thoroughfares leading into Uruguay, thus impacting Uruguay's tourism revenue. (11) In the request, Uruguay asked the I.C.J. to require Argentina to disband the citizen groups and end the interruption of inter-country transit, as well as abstain from any other action which might prejudice Uruguay's rights until the I.C.J. resolved the overarching dispute. (12) In support of the provisional measures, Uruguay argued that by allowing its citizens to disrupt the flow of tourism into the country, Argentina was irreparably harming Uruguay by forcing it to choose between its industrial industry and its tourism industry. (13) Uruguay went on to argue that by allowing such behavior, Argentina was violating its obligations as a party to a court proceeding by failing to refrain from any actions which might render the present dispute more difficult to resolve. (14) In response, Argentina first challenged the jurisdiction of the court to grant Uruguay's request for provisional measures and then introduced evidence indicating that the blockades had not caused Uruguay irreparable harm to either development project. (15)

In 1975, Argentina and Uruguay entered into the Statute of the River Uruguay to define concurrent and exclusive jurisdiction along the river and establish mechanisms for joint use and co-habitation. (16) While the treaty primarily grants each country exclusive jurisdiction and control over its own riparian zone, it nonetheless includes some fairly broad provisions which apply to the entire river; directly affecting each country's use of its coastal lands. (17) Article Seven is of particular significance because it requires a party planning to construct or develop anything which might affect the "regime of the river or the quality of its waters," to notify the Administrative Commission of the Rio de La Plata (CARU)--the agency charged with effectuating the purpose and requirements of the treaty. (18) In addition, CARU is charged with attempting to resolve any dispute which might arise under the statute. (19) If CARU is unable to find a solution, however, the treaty confers ultimate judicial settlement authority on the I.C.J. (20)

The I.C.J., the primary judicial organ of the United Nations (U.N.), is charged with settling legal disputes submitted by nation states and giving advisory opinions in accordance with international law. (21) The court can examine a dispute only where the states involved have voluntarily accepted I.C.J. jurisdiction by making a mutual agreement to be heard by the court, inserting an I.C.J. jurisdictional clause into a treaty or agreement, or entering into reciprocal agreements with states that have declared the I.C.J. as having dispute resolution authority. (22) In addition, the I.C.J. has the authority to indicate provisional measures during proceedings, essentially ordering a party to take steps to protect and preserve the respective rights of the opposing party. (23)

Article Seventy Three of the I.C.J. Rules of Court allows either party within a dispute to make a written request for the indication of provisional measures when that party is concerned that the opposing party is infringing upon the rights it seeks to protect. (24) The I.C.J. will grant a request for provisional measures only where the moving party has demonstrated that the Court has substantive jurisdiction, the party will suffer irreparable prejudice if not protected, and there is a certain amount of urgency surrounding the moving party's claim. (25) In many instances, the I.C.J. has granted requests for provisional measures for the primary purpose of directing parties to avoid taking any actions which might aggravate the underlying dispute or diminish the likelihood of settlement. (26) The court grants these requests with the intent that they bind both parties within the dispute. (27) While the provisional measures are binding as a matter of law, the method by which the I.C.J. is supposed to enforce them is unclear; as a result, I.C.J. provisional measure legitimacy has been somewhat undercut by previous occasions in which parties have refused to adhere to I.C.J. orders. (28)

In denying Uruguay's request, the I.C.J. held that Uruguay had failed to demonstrate sufficient evidence that the Argentine blockades were causing state supported development projects to suffer irreparable harm. (29) As a preliminary matter, the court considered whether it had jurisdiction to rule on Uruguay's request by examining the link between the underlying pulp mill litigation and the Argentine blockades. (30) The court concluded that it...