WSP08751 - Laserfiche WebLink

Home Browse Search

1959] ADJUDICATION IN INTERNATIONAL RIVER DISPUTES 43 N 1:.',) 01 o thus acknowledged practically. In endorsing them the Tribunal has added to their juridical stature. 1. One article of. a treaty between France and Spain laid down that all stagnant or running waters are subject to the sovereignty of the state in which they are located, "except for the modifications agreed to between , with it. The part of the Declaration requiring prior agreement before alterations are made in the regime of international rivers is claimed by France to apply only to cases in whieh the quantity or quality of water at the border is changed. Since the French projeet entails no such change, it is argued) France is respecting customary international river law. The pertinent provisions of the Geneva Convention of 1923 (see text in 36 L.N.T.S. 75 and in Principles . . . American Committee, cited note 21 above, at 56) are also analyzed one by one in the French Memoire, and it is argued that the proposed diversion does not violate them. Concerning the validity of the above declaration and convention as indicative of the present state of customary international river law, the Memoire states: 'l rrhey are the results of efforts which have not always been crowned with success and followed by action. But their importance is no less great, thanks to the competence and authority of their authors and to the very extensive scope, one might say universal scope, of the rules which they have attempted to establish." (Affaire du Lac Lanoux, M6moire du Gouvernement de Ia Republique Fran~aise 64-65, Paris, 1957; authors' translation. ) The French M~moire summarizes the principles to be derived from the authorities as follows: "As far as this litigation is concerned, the following [rules] may be particularly re- tained: Sovereignty, on its territory, of a State desirous of carrying out hydroelectrie developments; correlative duty, for it, not to injure gravely the interests of a neigh- boring State; convenience of informing a neighboring State of contemplated projects, of discussing them with it, if it need be; opportunity of searching for an agreement including, if appropriate, guarantees of execution; but no duty, if the interests of the latter State do not suffer serious prejudices, to obtain its consent before under~ taking the works." (Ibid. at 65; authors' translation.) The Spanish M~moire, at pp. 61-78, stated that the examination or treaties regu~ lating the rights of eo-riparians is a proper method of inquiry into the conception- of general international river law held by states in general, aince in many cases treaties contain applications of general principles to specific circumstances. A number of bi. lateral and multilateral treaties are then analyzed in the Memoire to show that co- riparians have often undertaken to refrain from making changes in the existing regime of international rivers without first securing the consent of interested co-riparians. . The decisions of the German, Swiss, and American federal courts are reviewed in the Memoire to indicate that the principle that no substantial change can be brought about by one riparian without the consent of co-riparians is supported in the available opinions of courts having to decide questions analogous to those arising from the uses of international rivers. More than 30 publicists are listed in the Memoire as supporting the view that a prior agreement is mandatory before a riparian may effect a substantial change in the regime of the waters of international rivers and lakes. It is recognized by the Spanish Gov~ ernment that different authors justify their views on the basis of different theories, but the conclusion is reached that they all agree on the basic proposition that inter- national law, apart from treaty, sanctions not only the equality of rights of co. riparians, but also the necessity of prior agreement among co-riparians, whenever a sub. stantiRl alteration of the regime of the waters is contemplated. "