WSP08751 - Laserfiche WebLink

Home Browse Search

36 [Vol. 53 THE AMERICAN JOURNAL OF INTERNATIONAL LAW N (,...) .,,"" W The comm~tment to arbitrate will frequently induce agreement by nego- tiation, Before discussing this rOle of arbitration, there is a middle position suggested by a conclusion in a legal memorandum submitted by the Department of State to a committee of the United States Senate in April, 1958, The State Department was facing the problem raised by the fact that some changes in the regime of an international river may. have consequences so serious that it is not enough for a state proposing to make the change to stand ready to compensate in the event that it should be held that its action affected adversely the legal rights of a co-riparian. It faced also the problem that in such a situation it would be as unsatis- factory were the objecting co-riparian to arrogate to itself the right to judge whether its rights would be adversely affected as for the riparian proposing the change to be the judge of the correctness of its position. Its conclusion is as follows: 3 (a) A riparian which proposes to make, or allow, a change in the existing regime of a system of international waters which could interfere with the realization by a eo-riparian of its right to share on a just and reasonable basis in the use and benefits of the system, is under a duty to give the co-riparian an opportunity to object. (b) If the co-riparian, in good faith, objects and ,demonstrates its willingness to reach a prompt and just solution by the pacific means envisaged in Article 33 (1) of the Charter of the United Nations, a riparian is under a duty to refrain from making, or allowing, such change, pending agreement or other solution.'. The pacific means envisaged in Article 33 (1) of the Charter of the United Nations include arbitration and judicial settlement. A similar conclusion by the Committee on the Uses of Waters of International Rivers of the American Branch of the International Law Association recognizes the duty of a riparian to refrain from making changes so long as an ob- jecting co-riparian "demonstrates its willingness to reach a prompt and just solution by the pacific means envisaged in the Charter of the United Nations, including a determination by the International Court of Justice or other agreed tribunal." '" The above formulations recognize the rOle that adjudication can play, even though the parties are unwilling to commit themselves to compulsory adjudication in all cases, In effect they say that if a co-riparian wishes to hold up changes in a river regime on the ground that they would ad- versely affect its rights, it may do so only if it is willing to have the validity 20 Memorandum of the U. S. Department of State, 85th Cong., 2d Sess., Sen. Doe. No. 118, pp. 90-91 (1958), prepared by William L. Griffin, entitled "Legal Aspects of the Use of Systems of International Waters with Special Reference to the Columbia. Kootenay River System under the Treaty of 1909 and under Customary International Law" (hereinafter cited as ~'Dept. of State Memorandum."). 21 Principle III in Principles of Law and Recommendations on the Uses of Inter. national Rivers-Statement of Principles of Law and Recommendations with a Com. mentary and Supporting Authorities Submitted to the International Committee of the International Law Asso.ciation by the Committee on the Uses of Waters of International Rivers of the American Branch, p. xi (Washington, D. C., 1958, Lib. Congo Cat. Card No. 58-12111; hereafter cited as "Principles... American Committee"). .of. Principle 3 of Resolution of Inter-American Bar Association, quoted below, pp. 73-74. ~~"'-- ~~-:..