Abstract: |
Summary of Facts:
• The origin of the dispute are the demonstrations done by the Argentinean populations on the banks of the River Uruguay, in particular from the city of Gualeguaychú, as a reaction against the construction of two pulp mills by two private companies on Fray Bentos, the Uruguayan coast of the river. The residents look at them as a future focus of environmental pollution, hence a violation of the Agreement for the administration of the River Uruguay between Argentina and Uruguay of 1975.
• The demonstrations started since September 2003 with the rally “Abrazo Solidario” (Embrace of Solidarity) in which Argentineans and Uruguayans participated protesting against the pulp mills.
• On July 2005, the group “Asamblea Ambiental Ciudadana de Gualeguaychú” (Gualeguaychú Citizens’ Environmental Assembly, AACG) made presentations before the Minister of Exterior of Uruguay and the Argentinean President, with signatures from 35,484 residents. Through these presentations they denounced both governments the breach of the agreement and requested the stop of the constructions until a bi-national commission did an environmental impact analysis. And, in case of a discrepancy in this analysis, to bring the issue to the International Court of Justice.
• On October 2005, the AACG reiterated the petition to the Argentinean Minister of Exterior to request the Uruguayan Government the immediate cessation of the works and, in case of a rejection from Uruguay, to bring actions before the International Court of Justice.
• The blockings were done on three international bridges:
o On Route 136, which gives access to the international bridge Gral. San Martín, started on July 8, 2005 and, with interruptions, went on until May 2, 2006.
o On Route 135, which gives access to the international bridge of Gral. Artigas, started on December 30, 2005 and, with interruptions, went on until April 18, 2006.
o On the bridge over the Salto Grande dam, the blockings were done on January 13 and 14 and on February 22 in 2006.
• Due to the blockings, the Argentinean General Directorate of Customs instructed customs on an emergency operation to guarantee the normal flow of international trade.
• The roadblocks stopped two weeks after the speech from the Argentinean President in which he asked the protesters to lift the roadblocks.
• Two days after the lifting of the cuts, on May 4, 2006, Argentina filed the demand against Uruguay before the International Court of Justice on the controversy regarding the Statute of the River Uruguay.
• Uruguay argued:
o The issue was that Argentinean authorities failed to take appropriate action to stop the blockings although the number of demonstrators was, in general, very low. For Uruguay, the omissions by Argentina up to that moment implied that in the event of new blockings it would act in the same way, generating a permanently state of doubt and insecurity.
o The blockings caused Uruguay important damages and also affected Uruguayan economic sectors and agents, mainly those related to imports, exports, tourism and land transport of passengers and goods.
o This situation was in violation of the principle of free movement of goods that is part of the fundamental principles of the common market that was established among the members of the Mercosur by the Treaty of Asunción and the Montevideo Protocol.
o As for the free movement of people, the blockings were disregarding the current commitments among the parties under international instruments of Human Rights.
o In its claim, Uruguay referred to other agreements related to it: Agreement on International Ground Transportation and the rules from the WTO.
o Uruguay also brought up a similar case decided by the Court of Justice of the European Communities: Comission v/ France – Case C265/95 by which the court held France responsible for the roadblocks made by some civilians.
• In its answer, Argentina argued:
o That Uruguay had innovated and expanded the matter of the dispute from what it was claiming in the negotiation phase. In the latter, the matter were the blockings to free movement and in the arbitral demand are the omissions to take appropriate action to prevent and/or make end the restriction to free movement.
o The claim was devoid of purpose because by the date of demand the roadblocks had ceased and had not happened again. Also qualified the claim as nonspecific and abstract because it was requiring Argentina to take action in case that these kinds of protests happened again, without specifying which measures it should had adopted.
o The roadblocks did not damage the trade and tourism between these two countries. On the contrary, during the blockings both activities increased. The economic agents that use those bridges were neither damaged since the roadblocks were announced in advance so they could use alternative routes.
o The protests represented the exercise of a legitimate right. This situation constituted the juxtaposition of two rights with the right to free speech and reunion on one side and the right to free movement of goods on the other. For Argentina the international laws of human rights have constitutional status while the laws of integration have legal status.
o The free movement of people that Uruguay alleged was damaged by the roadblocks was not yet operational in the context of the MERCOSUR as it is in the European Union. Neither was yet valid in the process of regional integration the right to free movement as may affect the transport of goods to or from third countries.
o Argentina based its opinion on the idea that Human Rights could justify the restriction to the exercise of the rights consecrated by an integration treaty. To support this, Argentina brought up the case ‘Schmidberger’ decided by the Court of Justice of the European Communities giving priority to the right of free speech over the free movement of goods.
o It had to be recognized that freedom of speech, freedom of reunion, and the right to protest have special relevance among Human Rights. Also, should be added the right to choose the public space in which the protest can be exercised with more efficacy. Following this reasoning, Argentina considered that the liberation of the bridges would have meant an unacceptable repression for Argentinean public law.
o For Argentina, dissuasion was the only legitimate alternative for the rulers.
o Argentina finally emphasized that the movement of goods and people between the two countries always had alternative access. Furthermore, Customs and Immigration services were reinforced during the protests. These actions showed, according to Argentina, that there were no omissions from them.
Issues:
- Specific Issues for Attention
• The recognition the Tribunal gave to Human Rights, but making especial emphasis on the limits they have when affecting the rights of others.
• The Tribunal gave priority to the trade principles that the parties to MERCOSUR had accepted.
• This decision is intended to set clear criteria to avoid future disputes among the State members of MERCOSUR.
• Notwithstanding this decision and the fact that Argentina did not appealed it, the conflict continues. The roadblock in one of the bridges (Route 136) was reestablished in November 20, 2006 and continues up to date (March 5, 2010). The countries expect the decision from the International Court of Justice will be issued this year.
- Procedural Practice Issues
Jurisdiction: Ad Hoc Arbitral Tribunal constituted according to the Dispute Settlement System of the MERCOSUR pursuant to the Olivos Protocol.
Standing: Uruguay alleged to had been injured by the blockings done by environmentalist protesters in two international bridges that communicate both countries. For Uruguay the issue was the lack of action from the Argentinean authorities to stop the protests and the blockings.
The Olivos Protocol, which rules the arbitral procedure for dispute settlement in the MERCOSUR, requires the countries in a dispute to attempt to solve it through direct negotiations before starting arbitration. Argentina and Uruguay went first through negotiations without reaching a solution. Uruguay decided to start the Ad Hoc arbitral procedure according to Chapter VI of Olivos Protocol. The Arbitral Tribunal acknowledged the compliance of all the terms and conditions required by the Olivos Protocol for starting the arbitration.
Evidence:
• Both countries presented documentary evidence that was accepted by the Tribunal, such as:
o The requests done by the Citizen Environmental Assembly of Gualeguaychú (CEAG) with signatures from the residents.
o The second request from the CEAG.
o Police Report on the blockings done on three international bridges.
o Instructions on emergency operation by the Argentinean General Directorate of Customs.
o Speech from the Argentinean president requesting the lifting of the blockings.
o Communications among the governments.
• The parties were called for a hearing in which both presented their witnesses that were examined by the parties and by the Tribunal, when it considered necessary.
Decision: The Tribunal unanimously decided that:
• It had jurisdiction to hear and decide the dispute.
• It declared that the absence of due diligence that Argentina should have adopted to prevent, order o amend the roadblocks connecting Argentina and Uruguay, was not compatible with the commitment of the States Parties pursuant to the foundational treaty of MERCOSUR of guaranteeing the free movement of goods and services among their territories.
• It is not justified in law that this “Ad Hoc” Tribunal adopts or promotes determinations over future actions from Argentina.
Enforcement: Argentina did not appeal the decision, nevertheless the roadblocks started again and the one on Route 136 continues up to March 5, 2010.
• The special incentive arrangement for sustainable development and good governance for products originating in Sri Lanka provided for in Regulation (EC) No 732/2008 shall be withdrawn temporarily. The Council shall re-establish the special incentive arrangement for products originating in Sri Lanka, if the reasons justifying the temporary withdrawal no longer prevail.
• If the blockings were repeated, the Tribunal considered the Argentinean government might maintain the permissive behavior it had had in the previous situations. This expectation, according to the Tribunal, generated a potential risk that Argentina had not been interested in disabling. The Tribunal considered there was a latent danger that similar situations might had taken place therefore the issue at hand was not merely an abstract matter, as was argued by Argentina.
• Regarding the failure by omission pursuant to MERCOSUR legislation, the Tribunal concluded that the events occurred violated the free movement principle that art. 1 of the Treaty of Asunción considers as a core of the commitment among the States party of MERCOSUR. The effects of the exercise of the citizens’ right to protest exceeded the limits of respect that the States owe to the legislation that compels them to guarantee the free movement of goods and services. For the Tribunal, Argentina did not prove its argument that it could not adopt more efficient actions to deter the protesters without violating their basic rights. Regarding the argument that a State cannot be considered responsible for the actions of their private citizens, the Tribunal agrees with it but affirms that a State can be regarded responsible for failing to act in due diligence, meaning that it did not take appropriate action to prevent or stop the acts of individuals that damage another State.
• On the subject of Human Rights violations, Argentina argued that its government took all the actions available to them and taking further action would imply violating the protesters’ human rights. For the Tribunal, with this argument, Argentina seemed to condition its international commitment assumed in the Treaty of MERCOSUR to the legal possibilities that their national law allows in Human Rights matters, which goes against the principle that States cannot evade their international commitments invoking rules of domestic law (art. 27 Vienna Convention on Treaty Law from 1969). The Tribunal argued that the Argentinean Constitution and the international treaties on Human Rights recognize the relativity of subjective rights before the subjective rights of others and the possibility of their limitation for reasons of general wellbeing. Therefore, the Tribunal concluded that not even in Argentinean Law the right to protest is absolute and must be limited when it affects the rights of others. Accordingly, the Tribunal recalled: the Universal Declaration of Human Rights, the American Convention on Human Rights (Pact of San José, Costa Rica), the International Covenant on Civil and Political Rights. All of which are part of the Argentinean Constitution since 1994 when they were incorporated to it.
• Concerning the behavior due to prevailing circumstances, the Tribunal concluded that there had not been a discriminatory intention from the Argentinean government to damage commercial traffic with Uruguay. Nevertheless, the Tribunal argued that despite the “good faith” that might had inspired the reasoning of Argentina, the selection of the “proper conduct” does not depend on the intention but on the effectiveness of the adopted measures to obtain the required results, complying with international commitments.
• Regarding the precedents from the European Court of Justice relied upon by the parties; the Tribunal considered that neither of them is applicable to this case.
• Regarding the request made by Uruguay for the Tribunal to determine the future conduct that Argentina should be subjected to, the Tribunal deemed inappropriate to assume powers beyond its capabilities by trying to regulate the future conduct of the States. Further, to create this kind of obligations would tie only one party and not all the members of MERCOSUR, which would go against the principles of equality and reciprocity prevailing in the Treaty of Asunción. For the Tribunal, this decision would be useful to determine clear rules to delimitate what is allowed and what prohibited, therefore future similar conflicts cannot be expected to happen.
Notwithstanding that the Tribunal considered the omissions from Argentina as not compatible with the principles of MERCOSUR, the conflict continues. It has finished before the MERCOSUR with this decision but remains alive before the International Court of Justice, which is expected to issue its decision on the demand presented by Argentina sometime this year (2010). The roadblock on Route 136 was reestablished on November 20, 2006 and has continued since then.
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