WSP08751 - Laserfiche WebLink

Home Browse Search

N t,;,) ,;:::.. .,l\...) " , 1959] ADJUDICATION IN INTERNATIONAL RIVER DISPUTES 35 with Spain would, if carried out without the prior agreement of Spain, constitute a violation of stated treaties." The Tribunal reasoned that, in determining whether Spain's agreement was necessary, it should first find whether the change would affect Spain adversely. It found that Spanish interests would not be adversely affected. The question then became: Is agreement necessary before making on French territory a change that would not a.dverseIy affect Spain f The Tribunal examined this under Ie droit international commun as well as under the treaties between Spain and France. The treaties, it found, did not require prior agreement. The question thus resolved itself to this: Is prior agreement required under customary interJ:l,ational law to a change in the regime of an international river by a riparian that sustains before an arbitral tribunal its contention that the change will not adversely affect the interests of its co-riparian f The Tribunal held that under these circumstances agreement was not necessary. The case is not significant for this holding, It is significant for its demonstration of the way a stumbling block to agreement can be removed by arbitration. So long as Spain objected, believing, as it did, that the proposed change might adversely affect its interests and that France would be violating its treaty obligations, this objection-given a French desire not to offend Spain-effectively blocked both agreement to the change and harmless change without agreement. The arbitration removed this stumbling block, thereby permitting the parties to set to work agreeing upon details. The holding of the Tribunal goes further than to demonstrate this role of arbitration in promoting agreement. It brings out that insistence, by one side upon the right to be the sole judge of the merits of its own Con- tentions opens the door to possible 'international liability." This will bring little comfort to those who, while contending that agreement is the only way of settling an international river dispute, have built this con- tention on the premise that, lacking agreement, neither side is under any legal prohibition to make unilaterally whatever changes the advantages of its geographic position permit, '8 The alternative to agreement, the Tribunal said, is normally arbitra- tion whenever the judgment of two states, arrived at reasonably and in good faith, is in contradiction as to the facts or as to the applicable rules. In such a case, there would appear to be a dispute whieh the parties normally seek to resolve by negotiation, or in the alternative, by submitting to the authority of a third party. . . [Authors' translation.] 19 .. .. .. 16 Boundary Treaty of Bayonne of May 26, 1866, and the " Acta Additionnel' t of the same date. The texts of these treaties can be found in 56 Brit. and For-. State Papers 212 et seq. 17 Sentence at 50. 18"The Problem of the Indus and its Tributaries-An Alternative' View," note 2 above, at 274; see also note 36 below. 19 Sentence at 50.