WSP08751

• File Number: 8271.300
• Description: Colorado River Basin Salinity Control Program - General Information and Publications-Reports
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 1/1/1959
• Title: The Role of Adjudication in International River Disputes - The Lake Lanoux Case
• Water Supply Pro - Doc Type: Report/Study

1959]

ADJUDICATION IN INTERNATIONAL RIVER DISPUTES

47

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'rho question was raised whether the word "interests" as so used covered
only specific legal rights. The Tribunal found that under its general rule
of reason, "interests" included interests beyond specific legal rights.
It said;

I

It is neCessary to take into account all interests, whatever their nature,
which risk being affected by the works undertaken, even if they do not
correspond to a specific right. [Authors' translation.] 44

This conclusion, the Tribunal stated, was in accord with the "tendencies
which are manifest in matters of hydroelectric development in international
practice. " (Authors' translation,) 45
5. In determining whether the interests of a co-riparian are adversely
affected, it is not enough that the riparian proposing to make, a change
in the river regime decide unilaterally that the change will not impair
its co-riparian's interests. As against the proposing state, the state ex-
posed to the repercussions is the best judge of its own interests and has a
right to information necessary to form its own judgment as to the probable

,

being used by riparians in the other state, each _ country must give notice to the proper
authorities of ~e other country in order to give them an opportunity to object and to
render possible the safeguarding of all interests which might be affected. It is inter-
esting to note that France itself, notwithstanding its upstream interests in this dispute,
construed the above article in accordan'ce with the substantive ruIe - of reason. In an
official note of- May 1, 1922, of the Prime Minister and Minister of Foreign Affairs,
M. Poinca~6, France objected to the enlarged jurisdiction of a Mixed Commission,
saying that it was t( incompatible with her sovereign rights. Every State has in practice
the right to carry out, on its territory, independently, such works as it pleases. In ease
of alterations of the regime of waters whose counterpart is being used by ripariaus of
another State, it must only subordinate the execution to the safeguarding of the interests
of these riparians. These prinoiples are those of natural law. Article 11 of the Treaty
of $6 May 1866 has ailaed nothing. It has confined itself to indicating the procedure
aimed at insuring its enforcement in the relations between France and Spain." (Ai.
faire du Lao Lanoux, Contre-Memoire du Gouvernement de la Republique Franl}aise,
p. 6 [Paris, 1957]; authors' translation; emphasis added.)
The French Contre-Memoire, at p. 7, refers t.o this "natural law" and maintains
that, since no alteration of the regime or volume of the Carol River was planned, no
violation would follow. In addition the brief indicates the French interpretation of
the duties resting on France under Art. 11. The French Government stated that "TI
va de soi" that a state must respect the rights and interests of a lower riparian in one
of three possible ways, depending on the circumstances: (1) by indemni:fic~tion in the
form of payments or replacement of the waters appropriated (" soit par voie d'indem-
nisation en esp~ces ou en nature"); (2) by incorporating in its projects appropriate
technical and legal guarantees ("soit en assortissant son projet de garanties techniques
ou juridiques a.ppropri~e8"); (3) even by giving up its project if it cannot 'avoid a
serious injury to the interests in question ("soit m8me en y renonl}ant s'll ne pent
eviter de Mser d'une mani~re sensible les in'tCrMs en cause"). Ibid. at 29.
44 Sentence at 59. The Tribunal was applying at this point the substantive rule of
reason which it had enunciated previously. See notes, 39 and 42 above.
46 The consideration of all riparian interests involved is a common theme running
through all of the declarations and resolutions issued so far by learned societies. For
a summary of the work of international bodies in the field of international river law,
together with texts, see Appendix A in Principles . . . American Committee (op.
ait. note 21 above) at 53 et seq. For a review of the protection of existing lawful uses
of international rivers in the practice of states, see Appendix E, ibid. at 100.

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