The Danube is the second longest river in Europe. It is formed by two headstreams (each about 25 miles long), the Brigach River and Brege River, which rise in the Black Forest in Germany and unite below Donaueschingen only 20 miles await from Schaffhausen on the Rhine. Thereafter, it enters the Black Sea in a wide, marshy delta.
Entering Germany, it flows through Wüttemberg, past Ulm, and enters Austria, continues through Upper and Lower Austria. Near Vienna it forms a short frontier, and a longer frontier between Austria and Czechoslovakia. It passes Hungary (Komárno), Budapest and enters Yugoslavia, past Novi Sad, Belgradee, then reaches Romania, enters the great Walachian plain and forms most of the Rumanian-Bulgarian border. Below Galati (Romania) it receives the Prut River at the border of the Ukraine. Near Tulcea it forms three main arms: the Kilija, the Sulina and the St. George. The Sulina, the central arm of the delta, enters the Black Sea at town of Sulina.
Under the Treaty of Paris of 1856, the Danube was subjected to an international regime which applied the principles of river law embodied in the Final Act of the Congress of Vienna in 1815. By the Treaty of Paris of 1856, two Commissions were established: a permanent riparian Commission (which never actually became operative), and a European Commission as a temporary technical body. The powers of the European Commission were extended to the Romanian seaport of Galatz, a seat being granted to that country by the Treaty of Berlin of 1878.
The Treaty of London of 1883 extended this jurisdiction to Braila, another port in Romania; but Romania had not signed this Treaty. The Treaty of Versailles of 1919 declared the Danube an international river from Ulm to the sea and confirmed the jurisdiction of the European Commission in the powers vested in it before the war.
This Commission consisted of representatives of Great Britain, France, Italy and Romania.
The Definitive Statute of the Danube was signed on 23 July 1921 at an international conference meeting in Paris, and provided as follows:
The European Commission retains the powers which it possessed before the war. No alteration is made in the rights, prerogatives and privileges which it possesses in virtue of the treaties, conventions, international acts and agreements relative to the Danube and its mouths.
The authority of the European Commission extends, under the same conditions as before, and without any modification of its existing limits, over the maritime Danube, that is to say, from the mouths of the river to the point where the authority of the International Commission commences.
Article 9 of the Statute extended the jurisdiction of the International Commission from Ulm to Braila. Romania expressed different view with regard to the powers of the Commission in the sector Galatz-Braila from that of France, Great Britain and Italy. The matter was submitted by the Special Committee to the Permanent Court of International Justice for an advisory opinion.
Request for the Advisory Opinion
Three questions were put by the Special Committee:
1) Under the law at present in force, has the European Commission of the Danube the same powers on the maritime sector of the Danube from Galatz to Braila as on the sector below Galatz? If it has not the same powers, does it possess powers of any kind? If so, what are these powers? How far upstream do they extend?
2) Should the European Commission of the Danube possess either the same powers on the Galatz-Braila sector as on the sector below Galatz, or certain powers, do these powers extend over one or more zones, territorially defined and corresponding to all or part of the navigable channel to the exclusion of other zones territorially defined and corresponding to harbour zones subject to the exclusive competence of the Romanian authorities? If so, according to what criteria shall the line of demarcation be fixed as between territorial zones placed under the competence of the European Commission and zones placed under the competence of the Romanian authorities?
3) If the contrary is the case on what non-territorial basis is the exact dividing line between the respective competence of the European Commission of the Danube and of the Romanian authorities to be fixed?
Summary of the Advisory Opinion
1. As for the first question, in the opinion of the Court, the law in force is the Definitive Statute of 1921. All Parties concerned, i.e. France, Great Britain, Italy and Romania have signed and ratified both the Treaty of Versailles and the Definitive Statute. The Definitive Statute placed the entire navigable Danube under an international regime, and the jurisdiction of the European Commission extended from Ulm to Braila (Article 9) that is to say, as far as Braila.
2. As for the second question, as to whether the Commission should exercise all the powers in the sector Galatz-Braila in the same way as they are exercised in the sector below Galatz, according to the view of France, Great Britain and Italy, or only strictly technical powers in the disputed sector (Galatz-Braila) according to the view of Romania, the Court finds that Article 6 of the Statute of 1921 is not a new draft conferring only technical powers on the Commission, because the preparatory works cannot change the interpretation of the text of Article 6. The Interpretative Protocol is not part of the Statute and that is why it cannot prevail against the Definitive Statute. So the Court concludes that before the war, the Commission had the same powers with respect to the Galatz-Braila sector as in the sector below Galatz.
The Court follows functional criteria to delimit the powers of the European Commission and Romania in the Galatz-Braila sector. Taking into account the principles of freedom of navigation and equality of flags, the Court establishes two criteria:
(a) in the ports of Galatz and Braila, the European Commission alone has jurisdiction over navigation, that conception being taken to mean any movement of vessels forming part of their voyage;
(b) with regard to vessels moved or otherwise at rest in these ports, and with regard to the use by vessels of the installations and services of these ports... the powers of regulation and jurisdiction belong to the territorial authorities; the right of supervision, with a view to ensuring freedom of navigation and equal treatment of all flags, belongs to the European Commission.
The Oder River is the second longest river of Poland. It rises in Czechoslovakia in the Oder Mountains, 10 miles East-Northeast of Olomouc. It flows through the Moravian Gate, past Nový, Bohumin, into Poland, then past Opole, Wroclaw. It enters the Oder Marshes, dividing into two arms, the East Oder and the West Oder (Berlin-Stettin Canal). Fifteen miles north of Stettin, it empties into the Baltic. The Oder forms the northern part of the Oder-Neisse Line, the border between Poland and East Germany determined in 1945 by the Potsdam Conference.
Under the Treaty of Versailles of 1919 (first paragraph of Article 331), the Oder was declared an international river. The second paragraph of that Article declared as possessing international status all navigable parts of these river systems which naturally provide more than one State with access to the sea, with or without transhipment from one vessel to another; together with lateral canals and channels constructed either to duplicate or to improve naturally navigable sections of the specified river systems, or to connect two naturally navigable sections of the same river.
By Article 341 of the Treaty, the Oder was placed under the administration of an International Commission consisting of representatives of Poland, Germany, Great Britain, Czechoslovakia, France, Denmark and Sweden. The task of this Commission was to define the sections of the river or its tributaries to which the international regime shall be applied.
The differences between Poland and other members of the Commission concerned the question as to at what point the jurisdiction of the Commission should end in respect of two tributaries of the Oder: the Netze (Notec) and the Marthe (Warta). In the view of Poland, the jurisdiction of the Commission ended at the point where each river crossed the Polish frontier, while the other members of the Commission considered that it should be the point where each river ceased to be navigable, even if that point was situated within the Polish territory.
The Governments represented on the International Commission of the Oder drew up a Special Agreement asking the Court:
Does the jurisdiction of the International Commission of the Oder extend, under the provisions of the Treaty of Versailles, to the sections of the tributaries of the Oder, Warthe (Warta) and Netze (Notec), which are situated in the Polish territory, and, if so, what is the principle laid down which must be adopted for the purpose of determining the upstream limits of the Commission's jurisdiction?
Submissions of the Parties
As to the first question, Germany, Denmark, France, Great Britain, Sweden and Czechoslovakia asked the Court to declare that the jurisdiction of the International Commission extended to the sections of the Warthe and the Netze situated in Polish territory. For the juridical bases of their position, they cited the Barcelona Statute of 1921 (definition of navigable waterways of international concern), and the Treaty of Versailles (Article 331 - conditions of navigability). As to the second question, the upstream limits of the Commission's jurisdiction they submitted, should include all sections of the above two tributaries.
The Polish Government took the contrary view and asked the Court to declare that the jurisdiction of the International Commission did not extend to those two sections (of the Warthe and the Netze) situated in Polish territory.
Summary of the Judgement
Before rendering its judgement, the Court had to clarify two questions. The first of these related to Article 341 of the Treaty of Versailles stating that:
The Oder shall be placed under the administration of an International Commission.
In the Polish view, the tributaries of the river were not placed under the authority of the Commission. The Court however rejoined that the Special Agreement expressly mentioned the Warthe and the Netze. This meant that the Commission's jurisdiction extended to the tributaries.
The second question related to the applicability of the Statute Annexed to the Barcelona Convention of 20 April 1921, on which the Six Governments (except Poland) based their arguments. The Court observed that Poland had ratified neither the Convention nor the Statute of Barcelona, and that neither therefore could be cited against Poland, and accordingly based its judgement exclusively on the Treaty of Versailles.
In order to answer the first question, the Court had to interpret the second paragraph of Article 331 of the Treaty of Versailles stating as follows:
All navigable parts of those river systems which naturally provide more than one State with access to the sea.
The difference between an international and national river is that the first must be navigable and naturally provide more than one State with access to the sea. There was no question as to the navigability of the Warthe or the Netze, but Poland considered that the sections of the Warthe and the Netze in Polish territory provided only Poland with access to the sea, whereas the six Governments maintained the contrary (access to the sea for other States). The Court based its judgement on the concept of a community of interest of riparian States, thus:
When consideration is given to the manner in which States have regarded the concrete situations arising out of the fact that a single waterway traverses or separates the territory of more than one State, and the possibility of fulfilling the requirements of justice and the considerations of utility which this fact places in relief, it is at once seen that a solution of the problem has been sought not in the idea of a right of passage in favour of upstream States, but in that of a community of interest of riparian States. This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any riparian State in relation to others.
The Court went on to affirm that the jurisdiction of the International Commission of the Oder extended to the sections of the tributaries of the Oder, Warthe and Netze, situated in Polish territory.
Regarding the second question, namely, what is the principle laid down which must be adopted for the purpose of determining the upstream limits of the Commission's jurisdiction, the Court based its decision on Article 331 of the Treaty of Versailles. The Court had this to say:
The jurisdiction of the Commission extends up to the points at which the Warthe (Warta) and the Netze (Notec) cease to be either naturally navigable or navigable by means of lateral channels or canals which duplicate or improve naturally navigable sections or connect two naturally navigable sections of the same river.
The Congo River, the second longest river in Africa, rises in the Katanga plateau in the southeastern part of what was at the time of the dispute the Belgian Congo (now Zaire) across the Central African depression and turns, reaching the Atlantic Ocean through a narrow gorge in the Crystal Mountains. With its numerous tributaries, it drains a basin of some 1,450,000 sq. miles (the second largest basin in the world). The Congo is the chief thoroughfare for trade in the Belgian Congo (now Zaire).
The river transport company Union nationale des transports fluviaux (Unatra), with majority capital held by the State was set up in 1925 in the Belgian Congo (now Zaire, at Leopoldville). Four years later, in 1929, a British national, Oscar Chinn also established a river transport company in the Belgian Congo. As a result of the depression of 1930/31, the prices of raw materials of tropical origin fell, and the Belgian Government, by decision of 20 June 1931, ordered the lowering of the transport companies rates to a nominal level. Any loss would be reimbursed. Other private transporters, both Belgian and foreign, including Chinn, were excluded from this régime on the grounds of its temporary character.
In October 1932, the Belgian Government offered refunds to the private companies. Oscar Chinn however did not avail himself of this provision because he had gone out of business in July 1931. Instead, he sought the protection of the British Government, considering that he had been forged to go out of business following the decision of 20 June 1931 by which the Belgian Government had established a de facto monopoly in favour of Unatra.
According to the British Government, this decision violated the provisions of the Convention of Saint-Germain of 10 September 1919 on the Status of the Congo, claiming on these grounds reparation by the Belgian Government for the losses suffered by Oscar Chinn.
The matter was brought before the Permanent Court of International Justice by a special agreement signed at Brussels on 13 April 1934 between the two Governments (British and Belgian). Then put to the Court the following questions:
1. Having regard to all the circumstances of the case, were the above-mentioned measures complained of by the Government of the United Kingdom in conflict with the international obligations of the Belgian Government towards the Government of the United Kingdom?
2. If the answer to question 1 above is in the affirmative, and if Mr. Oscar Chinn has suffered damage on account of the non-observance by the Belgian Government of the above-mentioned obligations, what is the reparation to be paid by the Belgian Government to the Government of the United Kingdom?
Submissions of the Parties
The United Kingdom asked the Court to declare that the Belgian Government, by its decision of 20 June 1931, violated obligations toward the Government of the United Kingdom under the Convention of Saint-Germain and general international law and that the Belgian Government should pay the reparation for the damage suffered by Chinn.
Summary of the Judgement
First, the Court analysed the basis on which these obligations arose, namely the Convention of Saint-Germain of 1919, and the general principles of international law.
Article 1 of the Convention of Saint-Germain reads:
The signatory powers undertake to maintain between their respective nationals and those of States, Members of the League of Nations, which may adhere to the present Convention a complete commercial equality in the territories under their authority within the area defined by Article 1 of the General Act of Berlin of 26 February 1885, set out in the Annex hereto, but subject to the reservation specified in the final paragraph of that Article.
This Article makes it clear that the Convention of Saint-Germain abrogated the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890. The law applicable to this item case was the Convention of Saint-Germain, which confirmed the principle of free navigation and the principle of freedom of trade. But, for the Court, freedom of trade does not mean the abolition of commercial competition; it presupposes the existence of such competition.
Taking into account the temporary character of the measures taken by the Belgian Government and the special circumstances (the depression of 1930/31), the Court did not consider these like a violation of the Convention of Saint-Germain.
As for any violation of general international law to the effect that all States have a duty to respect the vested rights of foreigners - the Court could not accept this argument, since no vested right was violated by the Belgian Government.
The River Meuse rises in northeastern France, flows through Belgium and Holland into the North Sea, where it forms a common delta with the Rhine. The Rhine-Meuse delta is formed by the Upper Merwede, which has two tributaries, the New Merwede and the Lower Merwede. From its source in the Plateau of Langres, six miles west-northwest of Bourbone-les-Bains, it passes Neufchâteau au Troussey, entering Belgium below Givet. Passing Liège, it forms the Netherlands-Belgian border. At Maastricht it is wholly in the Netherlands.
The Netherlands and Belgium concluded a Treaty on 12 May 1863 in order to settle permanently and definitively the régime governing diversions of water from the Meuse for the feeding of navigation canals and irrigation channels.
By Article 1 of this Treaty, the construction of the new intake has been provided in the Netherlands, below Maastricht, and it would constitute the feeding conduct for all canals situated below that town and for irrigation in the Campine and in the Netherlands.
In 1925, the two States signed a new agreement designed to settle all differences concerning the construction or the enlargement of new canals. The Netherlands First Chamber however refused to ratify. Following this, the Netherlands started to construct the Juliana Canal, the Bosscheveld Lock and the Borgharen barrage, while Belgium began to construct the Albert Canal, a barrage at Monsin and a lock at Neerhaeren. The Netherlands seized the Court with a unilateral application under Article 36(2) of the Court's Statute (compulsory jurisdiction).
Submission of the Parties
The Netherlands asked the Court to declare that the construction of the new canals by Belgium was contrary to the Treaty of 1863, and to order Belgium:
a) to discontinue all the works and to restore to a condition consistent with the Treaty of 1863 all works constructed in breach of that Treaty; and
b) to discontinue any feeding held to be contrary to the said Treaty and to refrain from any further feeding.
Belgium asked the Court to declare that the Netherlands' submission was ill-founded, that the Borgharen barrage had been constructed in breach of the Treaty of 1863 and that the Juliana Canal too, was subject to the provisions of that same Treaty.
Summary of the Judgement
The Court rejected the Netherlands' submission with effect that the Article 1 of the Treaty of 1863 gave it the right to supervise and control all the intakes, situated not only in Netherlands' territory, but also in Belgium. The text of this article provided for only one, single feeder in the Netherlands.
With regard to the construction by Belgium of the Albert Canal (water taken from the Meuse in Netherlands territory), the origin of the water was irrelevant, In the opinion of the Court, the two States could modify, enlarge, transform, fill the canals and increase the volume of water in them on condition that the canals did not leave their territories and the volume of water was not affected.
The Court rejected the first Belgian submission concerning the Borgharen barrage, stating that the Treaty of 1863 did not forbid the Netherlands to alter the depth of water in the Meuse at Maastricht without the consent of Belgium, if the discharge of water, the volume and the current were not affected.
The second Belgian submission was also rejected by the Court on the ground that the construction of the Juliana Canal which was situated on the right bank of the Meuse did not come under the régime of water supply provided for by the Treaty of 1863, which was designed to regulate the supply of water to the canals situated on the left bank of the Meuse.
The sector of the Danube river with which this case is concerned is a stretch of approximately 200 kilometres, between Bratislava in Slovakia and Budapest in Hungary. Below Bratislava, the river gradient decreases markedly, creating an alluvial plain of gravel and sand sediment. The boundary between the two States is constituted, in the major part of that region, by the main channel of the river. Cunovo and, further downstream, Gabcíkovo, are situated in this sector of the river on Slovak territory, Cunovo on the right bank and Gabcíkovo on the left. Further downstream, after the confluence of the various branches, the river enters Hungarian territory. Nagymaros lies in a narrow valley at a bend in the Danube just before it turns south, enclosing the large river island of Szentendre before reaching Budapest.
The present case arose out of the signature, on 16 September 1977, by the Hungarian People's Republic and the Czechoslovak People's Republic, of a treaty concerning the construction and operation of the Gabcíkovo-Nagymaros System of Locks (hereinafter called the 1977 Treaty). The names of the two contracting States have varied over the years; they are referred to as Hungary and Czechoslovakia. The 1977 Treaty entered into force on 30 June 1978.
It provides for the construction and operation of a System of Locks by the parties as a joint investment. According to its Preamble, the system was designed to attain the broad utilization of the natural resources of the Bratislava-Budapest section of the Danube river for the development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties. The joint investment was thus essentially aimed at the production of hydroelectricity, the improvement of navigation on the relevant section of the Danube and the protection of the areas along the banks against flooding. At the same time, by the terms of the Treaty, the contracting parties undertook to ensure that the quality of water in the Danube was not impaired as a result of the Project, and that compliance with the obligations for the protection of nature arising in connection with the construction and operation of the System of Locks would be observed.
The 1977 Treaty provides for the building of two series of locks, one at Gabcíkovo (in Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute a single and indivisible operational system of works. The Treaty further provided that the technical specifications concerning the system would be included in the Joint Contractual Plan which was to be drawn up in accordance with the Agreement signed by the two Governments for this purpose on 6 May 1976. It also provided for the construction, financing and management of the works on a joint basis in which the Parties participated in equal measure.
The Joint Contractual Plan, set forth, on a large number of points, both the objectives of the system and the characteristics of the works. It also contained Preliminary Operating and Maintenance Rules, Article 23 of which specified that The final operating rules [should] be approved within a year of the setting into operation of the system.
The Court observed that the Project was thus to have taken the form of an integrated joint project with the two contracting parties on an equal footing in respect of the financing, construction and operation of the works. Its single and indivisible nature was to have been realized through the Joint Contractual Plan which complemented the Treaty. In particular, Hungary would have had control of the sluices at Dunakiliti and the works at Nagymaros, whereas Czechoslovakia would have had control of the works at Gabcíkovo.
The schedule of work had for its part been fixed in an Agreement on mutual assistance signed by the two parties on 16 September 1977, at the same time as the Treaty itself. The Agreement made some adjustments to the allocation of the works between the parties as laid down by the Treaty. Work on the Project started in 1978. On Hungary's initiative, the two parties first agreed, by two Protocols signed on 10 October 1983 to slow the work down and to postpone putting into operation the power plants, and then, by a Protocol signed on 6 February 1989 to accelerate the Project.
As a result of intense criticism which the Project had generated in Hungary, the Hungarian Government decided on 13 May 1989 to suspend the works at Nagymaros pending the completion of various studies which the competent authorities were to finish before 31 July 1989. On 21 July 1989, the Hungarian Government extended the suspension of the works at Nagymaros until 31 October 1989, and, in addition, suspended the works at Dunakiliti until the same date. Lastly, on 27 October 1989, Hungary decided to abandon the works at Nagymaros and to maintain the status quo at Dunakiliti.
During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative solutions. One of them, an alternative solution subsequently known as Variant C, entailed a unilateral diversion of the Danube by Czechoslovakia on its territory some 10 kilometres upstream of Dunakiliti. In its final stage, Variant C included the construction at Cunovo of an overflow dam and a levee linking that dam to the south bank of the bypass canal. Provision was made for ancillary works.
On 23 July 1991, the Slovak Government decided to begin, in September 1991, construction to put the Gabcíkovo Project into operation by the provisional solution. Work on Variant C began in November 1991. Discussions continued between the two parties but to no avail, and, on 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the Danube to be closed and, starting on 23 October, proceeded to the damming of the river.
The Court finally took note of the fact that on 1 January 1993 Slovakia became an independent State; that in a Special Agreement thereafter concluded between Hungary and Slovakia, signed at Brussels on 7 April 1993, the Parties agreed to establish and implement a temporary water management régime for the Danube; and that finally they concluded an Agreement in respect of it on 19 April 1995, which would come to an end 14 days after the Judgment of the Court. The Court also observes that not only the 1977 Treaty, but also the related instruments are covered in the preamble to the Special Agreement and that the Parties, when concentrating their reasoning on the 1977 Treaty, appear to have extended their arguments to the related instruments.
Proceedings had been instituted on 2 July 1993 by a joint notification of the Special Agreement. After setting out the text of the Agreement, the Court recited the successive stages of the proceedings, referring, among other things, to its visit, on the invitation of the parties, to the area, from 1 to 4 April 1997. It further set out the submissions of the Parties.
Submission of the Parties
1. In terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested to decide first
whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary.
2. By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is asked in the second place to decide
(b) whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the 'provisional solution' and to put into operation from October 1992 this system.
3. By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is asked, thirdly, to determine
what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary.
Summary of the Judgement
In relation to the first point the Court found that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcíkovo Project for which the 1977 Treaty and related instruments attributed responsibility to it.
In relation to the second point the Court found that Czechoslovakia was entitled to proceed, in November 1991, to Variant C in so far as it then confined itself to undertaking works which did not predetermine the final decision to be taken by it. On the other hand, Czechoslovakia was not entitled to put that Variant into operation from October 1992.
In relation to the third point during the proceedings, Hungary presented five arguments in support of the lawfulness, and thus the effectiveness, of its notification of termination. These were the existence of a state of necessity; the impossibility of performance of the Treaty; the occurrence of a fundamental change of circumstances; the material breach of the Treaty by Czechoslovakia; and, finally, the development of new norms of international environmental law. Slovakia contested each of these grounds.
- State of necessity
The Court observed that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty.
- Impossibility of performance
The Court found that it was not necessary to determine whether the term object in Article 61 of the Vienna Convention of 1969 on the Law of Treaties (which speaks of permanent disappearance or destruction of an object indispensable for the execution of the treaty as a ground for terminating or withdrawing from it) can also be understood to embrace a legal régime as in any event, even if that were the case, it would have to conclude that in this instance that régime had not definitively ceased to exist. The 1977 Treaty - and in particular its Articles 15, 19 and 20 - actually made available to the parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic imperatives and ecological imperatives.
- Fundamental change of circumstances
In the Court's view, the prevalent political conditions were not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty. Nor did the Court consider that new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is designed to accommodate change. The changed circumstances advanced by Hungary were thus, in the Court's view, not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project.
- Material breach of the Treaty
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C. The Court pointed out that it had already found that Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did.
- Development of new norms of international environmental law
The Court noted that neither of the Parties contended that new peremptory norms of environmental law had emerged since the conclusion of the 1977 Treaty; and the Court will consequently not be required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties (which treats of the voidance and termination of a treaty because of the emergence of a new peremptory norm of general international law (jus cogens)). On the other hand, the Court wishes to point out that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty. These articles do not contain specific obligations of performance but require the parties, in carrying out their obligations to ensure that the quality of water in the Danube is not impaired and that nature is protected, to take new environmental norms into consideration when agreeing upon the means to be specified in the Joint Contractual Plan. By inserting these evolving provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated in the Joint Contractual Plan. The awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20. The Court recognizes that both Parties agree on the need to take environmental concerns seriously and to take the required precautionary measures, but they fundamentally disagree on the consequences this has for the joint Project. In such a case, third-party involvement may be helpful and instrumental in finding a solution, provided each of the Parties is flexible in its position.
Finally, the Court was of the view that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination.
In the light of the conclusions it has reached above, the Court found that the notification of termination by Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related instruments.
In relation to the dissolution of Czechoslovakia, the Court found that the 1977 Treaty created rights and obligations attaching to the parts of the Danube to which it relates; thus the Treaty itself could not be affected by a succession of States. The Court therefore concluded that the 1977 Treaty became binding upon Slovakia on 1 January 1993.
Legal consequences of the Judgment
The Court observed that the part of its Judgment which answers the questions in Article 2, paragraph 1, of the Special Agreement has a declaratory character. It deals with the past conduct of the Parties and determines the lawfulness or unlawfulness of that conduct between 1989 and 1992 as well as its effects on the existence of the Treaty. Now the Court has, on the basis of the foregoing findings, to determine what the future conduct of the Parties should be. This part of the Judgment is prescriptive rather than declaratory because it determines what the rights and obligations of the Parties are. The Parties will have to seek agreement on the modalities of the execution of the Judgment in the light of this determination, as they agreed to do in Article 5 of the Special Agreement.
In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is still in force and consequently governs the relationship between the Parties. That relationship is also determined by the rules of other relevant conventions to which the two States are party, by the rules of general international law and, in this particular case, by the rules of State responsibility; but it is governed, above all, by the applicable rules of the 1977 Treaty as a lex specialis. The Court observed that it cannot, however, disregard the fact that the Treaty has not been fully implemented by either party for years, and indeed that their acts of commission and omission have contributed to creating the factual situation that now exists. Nor can it overlook that factual situation - or the practical possibilities and impossibilities to which it gives rise - when deciding on the legal requirements for the future conduct of the Parties. What is essential, therefore, is that the factual situation as it has developed since 1989 shall be placed within the context of the preserved and developing treaty relationship, in order to achieve its object and purpose in so far as that is feasible. For it is only then that the irregular state of affairs which exists as the result of the failure of both Parties to comply with their treaty obligations can be remedied.
The Court pointed out that the 1977 Treaty is not only a joint investment project for the production of energy, but it was designed to serve other objectives as well: the improvement of the navigability of the Danube, flood control and regulation of ice-discharge, and the protection of the natural environment. In order to achieve these objectives the parties accepted obligations of conduct, obligations of performance, and obligations of result. The Court is of the opinion that the Parties are under a legal obligation, during the negotiations to be held by virtue of Article 5 of the Special Agreement, to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled.
It is clear that the Project's impact upon, and its implications for, the environment are of necessity a key issue. The numerous scientific reports which have been presented to the Court by the Parties - even if their conclusions are often contradictory - provide abundant evidence that this impact and these implications are considerable.
In order to evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing - and thus necessarily evolving - obligation on the parties to maintain the quality of the water of the Danube and to protect nature. The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.
Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace. New norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcíkovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.
It is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties. It is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses. The Court will recall in this context that, as it said in the North Sea Continental Shelf cases:
[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it (I.C.J. Reports 1969, p. 47, para. 85).
What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an agreed solution within the co-operative context of the Treaty. Article 26 combines two elements, which are of equal importance. It provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This latter element, in the Court's view, implies that, in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.
The 1977 Treaty not only contains a joint investment programme, it also establishes a régime.
According to the Treaty, the main structures of the System of Locks are the joint property of the Parties; their operation will take the form of a co-ordinated single unit; and the benefits of the project shall be equally shared. Since the Court has found that the Treaty is still in force and that, under its terms, the joint régime is a basic element, it considers that, unless the Parties agree otherwise, such a régime should be restored. The Court is of the opinion that the works at Cunovo should become a jointly operated unit within the meaning of Article 10, paragraph 1, in view of their pivotal role in the operation of what remains of the Project and for the water-management régime. The dam at Cunovo has taken over the role which was originally destined for the works at Dunakiliti, and therefore should have a similar status. The Court also concludes that Variant C, which it considers operates in a manner incompatible with the Treaty, should be made to conform to it.
Re-establishment of the joint régime will also reflect in an optimal way the concept of common utilization of shared water resources for the achievement of the several objectives mentioned in the Treaty, in concordance with Article 5, paragraph 2, of the Convention on the Law of the Non-Navigational Uses of International Watercourses, according to which:
Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention. (General Assembly, Doc. A/51/869 of 11 April 1997.)
Having thus far indicated what in its view should be the effects of its finding that the 1977 Treaty is still in force, the Court turned to the legal consequences of the internationally wrongful acts committed by the Parties, as it had also been asked by both Parties to determine the consequences of the Judgment as they bear upon payment of damages.
The Court has not been asked at this stage to determine the quantum of damages due, but to indicate on what basis they should be paid. Both Parties claimed to have suffered considerable financial losses and both claim pecuniary compensation for them.
In the Judgment, the Court has concluded that both Parties committed internationally wrongful acts, and it has noted that those acts gave rise to the damage sustained by the Parties; consequently, Hungary and Slovakia are both under an obligation to pay compensation and are both entitled to obtain compensation. The Court observes, however, that given the fact that there have been intersecting wrongs by both Parties, the issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counter-claims. At the same time, the Court wishes to point out that the settlement of accounts for the construction of the works is different from the issue of compensation, and must be resolved in accordance with the 1977 Treaty and related instruments. If Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a proportionate share of the building and running costs.
The Helmand River rises in the mountains, 35 miles west of Kabul in Afghanistan and flows for 700 miles in Afghan territory. Downstream, about 40 miles to the north at Kohak, the river divides into two channels, flowing north and northwest into the Seistan lakes depression. The easterly tributary at Kohak, referred to as the Common River (in Afghanistan) and Rud-i-Pariun (in Iran) forms the boundary between the two countries for 12 miles and divides, flowing into lakes in Afghanistan and Iran. The other tributary at Kohak is the Rud-i-Seistan, which flows west and north-west to the Seistan lakes in Iran.
A first dispute between Afghanistan and Persia arose in connection with the delimitation of their boundary and the use of the waters of the Helmand River in the delta region (below Band-i-Kamal Khan) called Sistan or Seistan. In 1872, the dispute was submitted to the arbitration of a British Commissioner, General Goldsmid.
Summary of the arbitral award
On 19 August 1872, General Goldsmid gave his award at Teheran in the following terms:
Persia should not possess land on the right bank of the Helmand. It appears therefore beyond doubt indispensable that... both banks of the Helmand above the Kohak Band be given up to Afghanistan... The main bed of the Helmand therefore below Kohak should be the eastern boundary of Persian Sistan... It is moreover to be well understood that no works are to be carried out on either side calculated to interfere with the requisite supply of water for irrigation on the banks of the Helmand.
In 1902, the second dispute was submitted to the arbitration of a British Commissioner, Colonel MacMahon, who on 10 April 1905 rendered an award, defining what amount of water fairly represented a requisite supply for irrigation provided on behalf of Persia by the award of 1872. The Mission in Seistan had been created in order to determine this requisite supply for Persian needs and it has been stated that one third of the water which reached Seistan would suffice for irrigation in Persian Seistan, leaving at the same tire a requisite supply for Afghan requirements as well.
Summary of the Arbitral Award
The award contained eight clauses, the first and the seventh being the most relevant for the question under dispute. Thus:
Clause I - No irrigation works are to be carried out on either side calculated to interfere with the requisite supply of water for irrigation on both banks of the river, but both sides have the right, within their own territories, to maintain existing canals, to open out old or disused canals, and to make new canals, from the Helmand river, provided that the supply of water requisite for irrigation on both sides is not diminished.
Clause VII - It will be noted that the rights to the Helmand river which its geographical position naturally gives to Afghanistan as owner of the Upper Helmand, have been restricted to the extent stated above in favour of Persia in accordance with Sir Frederick Goldsmid's award. It follows, therefore, that Persia has no right to alienate to any other power the water rights thus acquired without the consent of Afghanistan.
San Juan River forms an outlet of Lake Nicaragua on the Nicaragua-Costa Rica border and issues from the southwest end of the lake at San Carlos, the river past El Castillo reaching the Caribbean Sea at An Juan del Norte (Greytown). To the right, it receives the San Carlos and Sarapiqui rivers. Near its mouth it forms three main arms: the Juanillo (in the north), the San Juan proper and the Rio Colorado (in the South).
Costa Rica and Nicaragua concluded a Treaty (Cañas-Jerez Treaty) on 15 April 1858, for the delimitation of their boundary. Article II fixed the dividing line between the two countries as:
Starting from the Caribbean Sea, shall begin at the end of Punta de Castilla, at the mouth of the San Juan de Nicaragua river, and shall run along the right bank of the said river up to a point three English miles distant from Castillo Viejo, the said distance to be measured between the exterior works of the said castle and the above-named point.
Article VI reads as follows.
The Republic of Nicaragua shall have exclusively the dominion and sovereign jurisdiction over the waters of the San Juan river from its origin in the Lake to its mouth in the Atlantic; but the Republic of Costa Rica shall have the perpetual right of free navigation on the said waters, between the said mouth and the point, three English miles distant from Castillo Viejo.
A dispute arose as to the validity of this Treaty and the Parties concluded on 24 December 1886 a compromise and submitted this dispute to the arbitration of the President of the United States of America. If the arbitrator decided that the Treaty was valid, he would have to interpret certain doubtful points in it.
Summary of the Arbitral Award
The award rendered on 22 March 1888 by Grover Cleveland, President of the United States of America, stated that the Boundary Treaty of 15 April 1858 was valid. With regard to the special rights of both Countries, the arbitrator next observed:
Second. The Republic of Costa Rica under said Treaty and the stipulations contained in the sixth article thereof, has not the right of navigation of the River San Juan with vessels of war.
Third. The Republic of Costa Rica cannot prevent the Republic of Nicaragua from executing at her own expense and within her own territory such works of improvement, provided such works of improvement do not result in the occupation or flooding or damage of Costa Rica territory, or in the destruction or serious impairment of the navigation of the said River or any of its branches at any point where Costa Rica is entitled to navigate the same. The Republic of Costa Rica has the right to demand indemnification for any places belonging to her on the right bank of the River San Juan which may be occupied without her consent, and for any lands on the same bank which may be flooded or damaged in any other way in consequence of works of improvement.
The Kushk River forms the boundary between northwest Afghanistan and southeast Turkmen. It rises in Paropamisus Mountains, 55 miles east-northeast of Herat, flows 150 miles northwest, past Kushk and empties into Murgab River (in Afghanistan).
On 10 September 1885, Great Britain and Russia concluded a Protocol for the delimitation of the boundary between Afghanistan and Russia. A joint commission was established in order to examine and determine the details concerning this boundary.
Under Clause III of the final Protocol No. 4, signed by this Commission at St. Petersburg on 10 (22) July 1887:
The clause in Protocol No. 4 of the 14th (26th) December 1805, prohibiting the Afghans from making use of the irrigating canals in the Kushk Valley below Chahil Dukhter which were not in use at that time, remains in force, but it is understood that this clause can only be applied to the canals supplied by the Kushk. The Afghans shall not have the right to make use of the waters of the Kushk for their agricultural works north of Chahil Dukhter; but the waters of the Moghur belong exclusively to them, and they may carry out any works they may think necessary in order to make use of them.
A new Commission was established in order to settle a dispute concerning the application of this clause.
Summary of the Arbitral Award
On 22 August (3 September) 1893, the Commission drew us a final protocol and decided that:
III. In order to elucidate and complete Clause III of Protocol No. 4 of 10th (22nd) July 1887, the Commissioners have established that the Afghans shall not be able to take off water from the river Kushk, north of the ruins of the Chahil Dukhteran bridge (Pul-i-Kishti), for irrigation by means of either new or disused or closed canals; the Afghans shall not have the right to carry on, below the parallel of Chahil Dukhteran fronting pillar No. 23, for irrigation, the branches of the canals which take off from the Kushk south of the ruins of the Chahil Dukhteran bridge (Pul-i-Kishti), but they shall have the right to make use of the said branches to irrigate their cultivation as far as the parallel of the Chahil Dukhteran frontier pillar No. 23.
The Zulía River rises in the Cordillera Oriental, west of Pamplona in Colombia. It flows North, past Puerto Villamizar, and across the international line, to Catatumbo River in the Maracaibo basin 4 miles West of Encontrados.
The Catatumbo River rises in the Cordillera Oriental of Colombia, southeast of Ocaña, and flows North through foothills, then East into the Maracaibo lowlands of Venezuela, where it receives Zulía River, and then into Lake Maracaibo.
The claimant Faber was a German subject, not domiciled in Venezuela, residing and having his place of business in Cúcuta, in Colombia. When Venezuela, by Executive decrees, suspended in 1900, 1901 and 1902 the navigation of the rivers Zulía and Catatumbo, Germany intervened, forcing Venezuela to open the river traffic on these two rivers (the Zulía route) stating that there were German merchants in Cúcuta who were injured by the Venezuelan decrees. By the Washington protocol of 13 February 1903, Germany and Venezuela established the Mixed Claims Commission, with Henry M. Duffield as umpire.
Summary of the Arbitral Award.
The umpire Henry M. Duffield, appointed by a German-Venezuelan Mixed Claims Commission, stated that:
The Catatumbo, so far as it is navigable, is entirely within the boundaries of Venezuela after the confluence of the Zulía River with it.
After explaining the physical and political conditions of Venezuela, he said that:
Venezuela had the right to suspend the traffic on these rivers by the closing of these ports. She was in full possession of them and they were actually under her sovereignty.
He added that Venezuela, by thus exercising her sovereignty, excluded from her internal commerce boats of other nationalities, and she had the right to regulate the internal navigation over its rivers and lakes, according to the principle of the free use of rivers running to the sea, because:
It must be considered as an international doctrine that the navigation of rivers passing through the territory of several States together with all their affluents must be free from the point where they begin to be navigable to the point where they empty into the sea.
As to the right of innocent use, the umpire stated that:
Most of the advocates of the innocent use of rivers base their claim upon the grounds that inhabitants of lands traversed by another portion of the stream have a special right of use of the other portions because such use is highly advantageous to them. If the proprietary right of the State to the portion of the river within its boundaries be conceded, as it must be generally, there can be no logical defense of this position. It certainly is a novel proposition that because one may be so situated that the use of the property of another will be of special advantage to him he may on that ground demand such use as a right. The rights of an individual are not created or determined by his wants or even his necessities.
The Camarones River rises in the Andes, in the Northern part of Chile, southeast of Arica, and flows about 65 miles west to the Pacific.
The Ucayali River is situated in the Eastern part of Peru. It is one of the Amazon's main headstreams, formed by the union of Apurimac (Tambo) and Urubamba rivers; it flows about 1,000 miles North, past Masisea, Pucallpa, and Contamana and joins the Marañon River, to form the Amazon for 55 miles of its course. The main affluents are: the Pachitea (left) and the Tapiche (right) rivers.
The Sama River is formed by the confluence of the river Chaspaya and the river Tala, west of Tarata, the capital of the Peruvian province. From this junction the river Sama flows to the sea cutting across the Northern portion of the Peruvian province of Tacna.
A dispute arose between Chile and Peru as to the Northern and Southern boundary of the territory covered by Article 3 of the Treaty of Ancon, signed on 20 October 1883.
Article 3 stated as follows:
The territory of the provinces of Tacna and Arica, bounded on the North by the river Sama from its source in the Cordilleras on the frontier of Bolivia to its mouth at the sea, on the South by the ravine and river Camarones, on the East by the Republic of Bolivia, and on the West by the Pacific Ocean, shall continue in the possession of Chile subject to Chilean laws and authority during a period of ten years, to be reckoned from the date of the ratification of the present treaty of peace.
Chile contends that the treaty established a river line, that is the river Sama from its source to its mouth, that treaty of Ancon dealt with the Peruvian provinces of Tacna and Arica and with a portion of another Peruvian province, of Tarata. In the view of Peru, Article 3 dealt only with provinces of Tacna and Arica, the province of Tarata is not included. The problem arose as regards the river line, because there was no such river line as the treaty described. The river Sama is formed by the confluence of the river Chaspaya and the river Tala, west of the capital of the Peruvian province of Tarata; but there is no river Sama that had its source in the Cordilleras on the frontier of Bolivia.
Summary of Arbrital Award
By a Special Agreement of 20 June 1922, the two Countries submitted the controversy to arbitration. The Arbitrator, President Calvin Coolidge, stated:
There is a dispute as to which of the tributaries of the river Sama east of the junction of the rivers Chaspaya and Tala should be regarded as the main affluent or the continuation of the river Sama, but neither the Chaspaya nor the Tala, nor their tributaries, conform to the description of the treaty and enable the Arbitrator to establish any line of the river Sama as described from its source in the Cordilleras on the frontier of Bolivia to its mouth at the sea.
The President, rendered his award on 4 March 1925, as follows:
The Arbitrator decides that no part of the Peruvian province of Tarata is included in the territory covered by the provisions of Article 3 of the Treaty of Ancon; that the territory to which Article 3 relates is exclusively that of the Peruvian provinces of Tacna and Arica as they stood on 20 October 1883; and that the Northern boundary of that part of the territory covered by Article 3 which was within the Peruvian province of Tacna is the river Sama.
The Arbitrator decides that the Southern boundary of the territory covered by Article 3 of the Treaty of Ancon is the provincial boundary between the Peruvian provinces of Arica and Tarapaca as they stood on 20 October 1883.
Finally, a treaty between Chile and Peru was concluded at Lima on 3 June 1929, with the assistance of President Hoover, giving Tacna to Peru, and Arica to Chile.
Zarumilla is a province in Northwest Peru. East-Northeast of Tumbes, department in Peru, the Zarumilla river starts (it is a very short river), on the border between Peru and Ecuador.
The Santiago River is situated between Ecuador and Peru, formed by the Paute and the Zamora Rivers in Santiago-Zamora province (Ecuador). It flows about 150 miles South to the Marañon river at the Western end of Pongo de Manseriche.
The Zamora River rises in the Andes, Southeastern part of Ecuador, South of Loja city, and flows about 150 miles East and North through tropical forests to join the Paute (Namangoza) River.
The Paute River rises in the Andes, Southeastern part of central Ecuador, South of Cuenca, flows Northeast, past Paute, then Southeast to join the Zamora. It is about 125 miles long. Its lower course is called Namangoza.
The Marañon River is one of the Amazon's main headstreams in Peru. It rises in the Andes from a series of small lakes, and flows North-Northwest along high Andean ranges, almost reaching Ecuador border, and turns Northeast to break through the famous Pongo de Manseriche gorge into Amazon basin.
In 1938 Peruvian forces occupied the provinces of El Oro and Loja in Ecuador. By intervention of Argentina, Brazil, Chile and the United States of America, Ecuador and Peru concluded a protocol of peace in Rio de Janeiro on 29 January 1942. By Article 8 of this protocol, the borderline in Eastern Ecuador started in the conloir of San Francisco, following a divortium aquarum between the rivers Zamora and Santiago, up to the junction of the Zamora and Yaupi.
The difficulties arose as to the delimitation of the Western section of the border between the two Countries. By exchange of notes of 22 May 1944, they accepted the mediation of Brazil as proposed by dr. Oswaldo Aranha, Brazilian Foreign Secretary. For the Southern part of the border, both Parties accepted a divortium aquarum, but in the North-Eastern part, the line of watershed divided into several branches. The post-captain Brazilian Braz Dias de Aguiar was chosen to act in his capacity as technician arbitrator, in order to resolve difficulties in the sector of Lagartococha-Guspi.
Summary of the Arbitral Award
Braz Dias de Aguiar rendered award the 14 July 1945, accepted by both Parties, declared:
Peru undertakes, within three years, to divert a part of the Zarumilla River so that it may run in the old bed, so as to guarantee the necessary aid for the subsistence of the Ecuadorian populations located along its banks, thus ensuring Ecuador the codominion over the waters in accordance with International practice.
Lake Lanoux is situated on the Southern slope of the Pyrénées, In French territory (the department of Pyrénées-Orientales). The lake is fed by streams, all of which rise on French territory and traverse only that territory. The lake waters flow out through a single stream, the Fontvive, which IS one of the sources of the Carol River. The latter, after about twenty-five kilometres from Lake Lanoux in French territory, crosses the Spanish border at Puigcerda and continues its course in Spain t for about six kilometres before joining the Segre river, which ultimately empties into the Ebro. Before entering Spain, the waters of the Carol teed the Puigcerda canal, which is the private property of the Spanish town of Puigcerda
France and Spain signed at Bayonne on 26 May 1866 the Additional Act to the Boundary Treaties concluded on 2 December 1856, 14 April 1862 and 26 May 1866 for the regulation of waters of common use.
On 21 September 1950, Electricité de France applied to the French Ministry of Industry to divert the waters of the Lake Lanoux to the River Ariège. The waters so diverted were to be completely returned to the River Carol by means of a tunnel connecting the rivers Ariège and Carol above the outlet to the Puigcerda Canal. France accepted the principle that waters diverted had to be returned, and that the quantity of water to be returned should correspond only to the actual needs of the Spanish riparian users.
On the basis of the Arbitration Treaty of 10 July 1929, between France and Spain, the two Countries signed a Compromis at Madrid, on 19 November 1956, by virtue of which the Arbitral Tribunal met in Geneva to pronounce on the following:
Is the French Government justified in its contention that in carrying out, without a preliminary agreement between the two Governments, works for the use of the waters of Lake Lanoux on the terms laid down in the project and in the French proposals mentioned in the preamble to this compromis, it would not commit a violation of the provisions of the Treaty of Bayonne of 26 May 1866 and of the Additional Act of the same date?
Summary of the Arbitral Award
The Arbitral Tribunal rendered its award on 16 November 1957, as follows:
1. The public works envisaged in the French scheme are wholly situated in France; the most important part if not the whole of the effects of such works will be felt in French territory; they would concern waters which Article 8 of the Additional Act submits to French territorial sovereignty as follows:
Article 8 - All standing and flowing waters, whether they are in the private or public domain, are subject to the sovereignty of the State in which they are located, and therefore to that State's legislation, except for the modifications agreed upon between the two Governments. Flowing waters change jurisdiction at the moment when they pass from one country to the other, and, when the watercourses constitute a boundary, each State exercises its jurisdiction up to the middle of the flow.
The Tribunal held that this Act imposed a reservation to the principle of territorial sovereignty, but could not accept that these amendments should be interpreted strictly, because they derogated from sovereignty. It stated:
Territorial sovereignty plays the part of a presumption. It must bend before all international obligations, whatever their origin, but only before such obligations.
Later, the Tribunal determined the French obligations in this matter. Spain based its arguments on the text of the Treaty and of the Additional Act of 1866, but in addition:
The Spanish Government bases its contention on both the general and traditional features or the régime or the Pyrenean boundaries and on certain rules of customary international law (droit international commun) in order to proceed to the interpretation of the Treaty and the Additional Act of 1866.
The Tribunal next considered the following two questions:
(a) did the French project constitute a violation of the Treaty of Bayonne and of the Additional Act?
(b) if not, could the execution of such works constitute a violation of the Treaty and of the Additional Act, because it had been subject to preliminary agreement between the two Countries, or because other provisions of Article 11 of the Additional Act concerning the negotiations between the two Countries had not been observed?
As to the first question (a) the Tribunal stated that Spain based its claim on two grounds: a prohibition, in the absence of agreement, of compensation between two basins, despite the equivalence between diversion and restitution, and a prohibition, in the absence of agreement, of any act which would create a de facto inequality with a physical possibility of a violation of rights.
In connection with a first ground the Tribunal considered that the diversion-with-restitution envisaged in the French project was not contrary to the Treaty and to the Additional Act of 1866, because:
The unity of a basin is sanctioned at the juridical level only to the extent that it corresponds to human realities. The water which by nature constitutes a fungible item may be the object of a restitution which does not change its qualities in regard to human needs. A diversion with restitution, such as that envisaged by the French project, does not change a state of affairs organized for the working of the requirements of social life.
In regard to the second ground, the Tribunal declared:
In any case, we do not find either in the Treaty and the Additional Act of 26 May 1866, or in customary international law, any rule that prohibits one State, acting to safeguard its legitimate interests, to put itself in a situation that would permit it in effect, in violation of its international pledges to injure a neighbouring State even seriously.
The Tribunal replied in the negative to the first question (a), to the effect that the French project did not constitute a violation of the Treaty of Bayonne and of the Additional Act.
As to the second question (b), the Tribunal examined the Spanish argument, namely, that the French project had been subject to the prior agreement. Spain made reference to the system of joint community grazing rights or to the generally accepted principles of international law, but the Tribunal rejected this argument, because:
The pasturage rights that the Spanish Commune of Llivia possesses on French territory, in no way touch the waters of Lake Lanoux or of the Carol and that:
... the rule according to which States may utilize the hydraulic force of international watercourses only on condition of a prior agreement between the interested States cannot be established either as a custom or, even less, as a general principle of law.
The Tribunal cited Article 1 of the multilateral Convention of Geneva of 9 December 1923, relative to the utilization of hydraulic forces of interest to several States to the effect that:
The present Convention in no way alters the freedom of each State, within the framework of international law, to carry out on its territory all operations for the development of hydraulic power which it desires.
With respect to the other obligations arising from Article 11 of the Additional Act, the tribunal stated:
Article 11 of the Additional Act imposes on the States in which it is proposed to erect words or to grant new concessions likely to change the course or the volume of a successive watercourse a double obligation. One is to give a prior notice to the competent authorities of the frontier district; the other is to set up machinery for dealing with compensation claims and safeguards for all interests involved on either side.
France had given notice of its projects in relation to Lake Lanoux, and this was not contested. The Tribunal noted:
In the case of Lake Lanoux, France has maintained to the end the solution which consists in diverting the waters of the Carol to the Ariège with full restitution. By making this choice, France is only making use of a right; the development works of Lake Lanoux are on French territory, the financing of and responsibility for the enterprise fall upon France, and France alone is the judge of works of public utility which are to be executed on her own territory, save for the provisions of Articles 9 and 10 of the Additional Act, which, however, the French scheme does not infringe.
The Tribunal took the view that the French project satisfied the obligations of Article 11 of the Additional Act, and that France in carrying out, without a preliminary agreement between the two Countries, works for the use of the waters of Lake Lanoux did not commit a violation of the provisions of the Treaty of Bayonne of 26 May 1866 or of the Additional Act.
The St. Lawrence River is one of the principal rivers in North America and chief outlet for the Great Lakes. The St. Lawrence proper issues from the Northeastern end of Lake Ontario and flows 744 miles Northeast to its mouth on the Gulf of St. Lawrence. Below Lake Ontario, the river forms about 114 miles of international boundary. Later, it widens into Lake St. Francis and then into St. Louis at mouth of the Ottawa River. It links up with the Atlantic Ocean through the Gulf of St. Lawrence.
Lake Ontario is situated between the United States and Canada. It is the smallest of the Great Lakes. It receives the drainage of entire Great Lakes system through the Niagara River and discharges through the St. Lawrence.
In 1874, Canada proposed to construct a dam between Adams Island in Canadian territory and Les Galops Island in United States territory in the St. Lawrence River, in order to improve navigation. The dam was to stop the flow of water through the channel (known as the Gut Channel) which passed between these two islands. The Government of Canada requested the consent of the United States to the construction of a dam, which was given in 1903 under two conditions:
1. That if, after said dam has been constructed, it is found that it materially affects the water levels of Lake Ontario or the St. Lawrence River or causes any injury to the interests of the United States, the Government of Canada shall mane such changes therein, and provide such additional regulation works in connection therewith as the Secretary of War may order.
2. That if the construction and operation of said dam shall cause damage or detriment to the property owners of Les Galops Island or to the property or any other citizens of the United States, the Government of Canada shall pay such amount of compensation as may be agreed upon between the said Government and the Parties damaged, or as may be awarded the said Parties in the proper court of the United States before which claims for damage may be brought.
Canada constructed the dam, but it was too low. So in 1904 a fresh consent was sought to increase the height of the dam. The United States duly consented. Between 1904 and 1951, as a result of certain changes, the flow of water in the Great Lakes - St. Lawrence River Basin was affected. They did not affect Gut Dam, but did affect the quantity of water flowing into Lake Ontario and the St. Lawrence River.
In 1951-1952 the level of Lake Ontario and the St. Lawrence River reached unprecedented heights, which caused flooding and erosion damage to the North and South shores of the Great Lakes, including Lake Ontario, belonging to the United States citizens. In 1962, the Congress of the United States authorized the Foreign Claims Settlement Commission of the United States to adjudicate claims of the U.S. citizens against Canada for damage caused to their property by Gut Dam. The United States and Canada by agreement signed on 25 March 1965, established the Lake Ontario Claims Tribunal. Both Parties chose as Chairman of the Tribunal Dr. Lambertus Erades, Vice-President of the District Court of Rotterdam (Netherlands).
The first question concerned the liability of Canada for damages caused by the Gut Dam. Canada extended its liability only to a small class of persons, the owner of Galops Island, i.e. the island on the United States side of the river which the dam abutted. The United States argued that under the 1903 agreement, Canada was required to compensate any citizen of the United States whose property was damaged.
The second question arose whether the obligation was limited not only to persons but also as to time.
Summary of the decision
The decision found in favour of the United States position, to the effect that Canada should be liable to compensate for damages Caused by the Gut Dam, is as follows:
The obligation extended not only to the owners of Les Galops Island but to any citizen of the United States.
The Tribunal next decided the second question, as to whether there was a time limitation on the obligation of Canada to compensate United States citizens for damage caused by the Gut Dam.
Canada argued that the time for such compensations expired in 1908. The United States rejoined that there was no time limit, and that Canada by sending a diplomatic note to the United States Government in 1952, acknowledging liability for damage caused by the dam, could not argue that its obligation expired in 1908.
Summary of the decision
The Tribunal held:
In official diplomatic representations the Canadian Government clearly recognized its obligation to pay compensation so far as the 1951-1952 claims are concerned.... It is clear to the Tribunal that the only issues which remain for its consideration are the questions whether Gut Dam caused the damage for which claims have been filed and the quantum of such damages.
The Tribunal recommended a compromise settlement.
The negotiations were undertaken between the two Countries, and an agreement was reached, namely that Canada would pay to the United States $350,000 for damage caused by the Gut Dam to American nationals.
Summary of the decision
The Tribunal recorded a joint communication concerning the compromise settlement and thereafter dissolved.
The area between landmark 62 and Mount Fitz Roy is quasi-rectangular, with three main mountain ranges from north-northeast to south-southwest. In the second (towards the east) mountain range there are two headwaters: Río Obstáculo, draining towards the Pacific; and a tributary of the Laguna Larga-Laguna del Desierto-Río Las Vueltas (or Gatica)-lake Viedma system, on the Atlantic watershed. Total surface area is approximately 481 Km.
In 1902 a dispute on the boundary line was submitted to the arbitration of Great Britain. The arbitral award stated that the terms of the Treaty of Friendship, Commerce and Navigation and Protocols between the two countries were inapplicable to their geographical conditions and subsequently would base its decision on the best interpretation of the diplomatic instruments submitted to it.
It divided the eastern (Argentina) and western (Chile) basins of lakes Buenos Aires, Pueyrredon (or Cochrane), and San Martin; and the dividing ranges carrying the lofty peaks known as Mounts San Lorenzo and Fits Roy. A stone landmark (No. 62) was placed at the Southern shore of Lake San Martin. The boundary in that sector corresponded to a line drawn from landmark 62 to Mount Fitz Roy. There was general agreement on the placement of the extreme points of the boundary. However, there were differences on the demarcation of the connecting line on the ground.
In 1984 a Treaty of Peace and Friendship was signed at the Vatican setting, among other things, legal mechanisms for differences regarding the boundary and the placement of landmarks.
In 1991, Argentina and Chile decided to subject the differences on the boundary line in the sector located between landmark 62 and Mount Fits Roy to arbitration. The decision of the Tribunal was to be based on the interpretation and application of the Arbitral Award of 1902.
Summary of the Arbitral Award
The Tribunal found that demarcation works taking place after the 1902 award were irrelevant to determine the intention of the arbitration in relation to the sector determined by landmark 62 and Mount Fitz Roy.
The Tribunal decided that the drawing of the limit between landmark 62 and Mount Fitz Roy is the local water-parting. This divide consists of a line from landmark 62 to Mount Martinez de Rosas. From there the divide continues towards the South-Southwest following the summits of the Martinez de Rosas chain. Then it descends to the pass between lagoons Redonda and Larga. It continues towards until Mount Treno. The water-divide turns to the Demetrio Mount, then to the Tambo Pass to reach the summit of Mount Melanasio or Ventisquero. The line turns to Mount Gorra Blanca, and it reaches the Marconi Pass. Thereafter, it ascends to the Marconi Norte Mountain, continuing south to the Rincón Mount. Finally, it divides runs towards the east, separating the Electric River to the north and the Fitz Roy river and Viedna Glacier to the south, ending up to the summit of Mount Fitz Roy.
 Text in: Permanent
Court of International Justice, Series B, No. 14, Series C, Nos. 13-IV(V),
(II), (III), (IV). Request for an advisory opinion made by the Council of the
League of Nations on 9 December 1926.
Parties: France, Great Britain, Italy and Romania.
 Text in: Permanent Court of International Justice, Series A, No. 23, Series C, No. 17 (II), Document instituting proceedings: Special Agreement of 30 October 1928.
Parties: Germany, Denmark, France, Great Britain, Sweden, Czechoslovakia and Poland.
 Text in: Permanent Court of International Justice, Series A/B, No. 63, Series C, No. 75.
Parties: Great Britain, Belgium.
 Text in: Permanent Court of International Justice, Series A/B, No. 70, Series C, No. 81.
Parties: Belgium, Netherlands.
 Text in: International Court of Justice, Communiqué (unofficial) No. 97/10 bis of 25 September 1997 and Judgement. Both available from the ICJ Internet Home Page.
Parties: Hungary and Slovakia.
 Text in: Mayors St. John, Lovett, and Evan Smith and Mayor-General Sir Frederick John Goldsmid, Eastern Persia, An Account of the Journeys of the Persian Boundary Commission, 1870-71-72, (London, 1876), Vol. I, p. 413.
Parties: Afghanistan, Persia.
 On 7 September 1950, the two Governments signed an agreement "Terms of Reference of the Helmand River Delta Commission and an interpretative statement relative thereto, agreed by Conferees of Afghanistan and Iran" (text in: ST/LEG/SER.B/12, 270), and established the Helmand River Delta Commission for the elaboration of the technical methods concerning the share of the water of the Helmand River for Iran (Seistan) and Afghanistan (Chakhansur).
 Text in: Moore, History and Digest of International Arbitration to which the United States has been a party, Washington, 1898, Vol. V, p. 4706.
 See text under footnote (2) on next page.
Parties: Costa Rica, Nicaragua.
 See text under footnote 2.
 For the text, see: Moore, op. cit. Vol. 2, p. 1964; the interpretation of article VIII of the Cañas-Jerez Treaty of 15 April 1858 and of certain passages of this award were the subject of a decision rendered on 30 September 1916 between Costa Rica and Nicaragua by the Central American Court of Justice. For the text of this decision, see American Journal of International Law (1917), Vol. 11, p. 181, and La Gaceta, Costa Rica, 7 October 1916.
 Text in: G.F. de Martens, Nouveau Recueil Général de traités, 1888, 2e série, t. XIII, p. 566.
Parties: Great Britain, Russia.
 Text in: Reports of International Arbitral Awards, Vol. X, p. 466.
Parties: Germany, Venezuela.
 Text in: Reports of International Arbitral Awards, Vol. II, pp. 921-958.
Parties: Chile, Peru.
 The "Aranha formula".
 Text in: Informe del Ministro de las Relaciones Exteriores a la Nación, p. 623, (Quito, 1946).
Parties: Ecuador, Peru.
 Text in: International Law Reports, 1957, p. 101.
Parties: Spain, France.
 Text in: International Legal Materials, 1969. pp. 118-143.
Parties: U.S.A., Canada.
 Text in: Tribunal Arbitral Internacional, Sentencia del 21 de Octubre de 1994, Controversia sobre el recorrido de la traza entre Hito 62 y el Monte Fitz Roy.
Parties: Argentina, Chile.