(before the Permanent Court of Arbitration)
Decisions and Opinions
Order on Interim Measures dated September 23, 2011
On May 17, 2010, the Islamic Republic of Pakistan instituted arbitral proceedings against the Republic of India under Paragraph 2(b) of Annexure G to the Indus Waters Treaty 1960. The request for arbitration centers on the two countries' dispute over construction of India's Kishenganga Hydro-Electric Project. In its request for arbitration, Pakistant identified two main issues: br>
- Whether India's proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar Madmati Nallah, being one central element of the Kishenganga Project, breaches India's legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India's obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV(6) (maintenance of natural channels)?
- Whether under the Treaty, India may deplete or bring the reservoir level of a run-of river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency?
(before the International Centre for the Settlement of Investment Disputes)
Summary: Farmers, ranchers, landowners, and irrigation districts from Texas filed a notice of Arbitration against Mexico in the International Centre for the Settlement of Investment Disputes (ICSID). The claimants commenced the action in 2004, alleging that Mexico had violated NAFTA Articles 1102, 1105(1), and 1110 by unlawfully expropriating approximately 1,013,056 acre feet of water from the Rio Grande. Claimants further contended that Mexico’s alleged expropriation deprived them of their water rights under a 1944 Treaty between Mexico and the United States, which caused crop failure, job loss, and reduced business activity. ICSID concluded that the 1944 Treaty did not create property rights that qualify as investments under NAFTA. Furthermore, ICSID determined that it did not have jurisdiction to hear claims under NAFTA Chapter Eleven because none of the claimants were seeking to make, were making, or had made an investment in Mexico.
(before the 9th Circuit Court of Appeals, USA)
Summary: From 1934 to 1942, the United States constructed the All-American Canal system to transport water from the Colorado River to the Imperial Valley. Since then, seepage from the canal has recharged the Mexicali Aquifer, which underlies the Mexicali Valley in Mexico and the Imperial Valley in California. In 1988, facing growing demand for water, the United States began considering options to prevent seepage loss in the Canal. Shortly thereafter, the U.S. Bureau of Reclamation approved a plan to construct a parallel lined canal. The project finally got underway in 2004. In 2005, a Mexican community group, two American environmental groups, and the City of Calexico filed suit seeking injunctive relief. The district court ruled in favor of the United States. In 2006, while the case was on appeal before the 9th Circuit, President Bush signed the Tax Relief and Health Care Act of 2006. Part of the Act directed the Bureau of Reclamation to proceed with the lining project “without delay” and "notwithstanding any other provision of law." Thus, the 9th Circuit held that the plaintiff’s statutory complaints were moot because the Act prevented any effectual relief. The Court further held that the district court lacked subject matter jurisdiction for the remaining claims, and therefore remanded the case to the district court with instructions to dismiss the case.
Decisions of 15 January 1968, 12 February 1968, and 27 September 1968, rendered by the Lake Ontario Claims Tribunal
(Canada v. United States)
Summary: The St. Lawrence River forms a north-eastern section of the border between Canada and the United States. Seeking to improve navigation on the river, Canada initiated a plan to dam a channel of the river between Les Galops Island of the U.S. and Adams Island of Canada. In 1903, the U.S gave its consent but made Canada promise to undertake additional works, if necessary, to maintain the water levels of Lake Ontario and the St. Lawrence River. Further, Canada agreed to compensate U.S. citizens harmed by the project. In 1951 and 1952, water levels in Lake Ontario and the St. Lawrence River surged and caused erosion damage on the banks of the Great Lakes. In 1962, Canada and the U.S. signed an agreement creating a claims tribunal to determine whether Canada owed compensation to U.S. property owners. Canada argued that its obligation only extended to U.S. citizens who owned land on the Galops Island and that its obligation terminated in 1908. The Tribunal, however, stated that the 1903 agreement obligated Canada to compensate any U.S. citizen whose property was damaged. Further, the Tribunal rejected Canada's second argument because in 1952 Canada sent a diplomatic note to the U.S. that acknowledged liability.
24 Int'l L. Rep. 101 (1957)
(Spain v. France)
Summary: Lake Lanoux is situated in southern France near the border of Spain. The lake is fed by several streams that all originate in France. Water flows out of the lake in a single stream that joins the Carol River before crossing into Spain. In the 1950's, France began developing a plan to divert water from Lake Lanoux over a 789 meter drop to generate hydroelectric energy. Even though France promised to return the diverted water to the Carol River, Spain pressed France to arbitrate the dispute because Spain believed the plan would violate its water rights under a series of treaties signed in 1866. The arbitration tribunal issued an award in 1957, which rejected Spain's arguments because the French plan promised not to alter the volume of water entering Spain through the Carol River. Although France would not have been allowed to unilaterally promote its legitimate interests at the expense or injury of neighboring states, the tribunal did not identify a foreseeable injury to Spain. Further, the Tribunal stated that the 1866 treaties did not constitute a reason to subjugate the general rule that standing and flowing waters are subject to the sovereignty of the state where they are located.
Arbitral Award of 14 July 1945, rendered by the Chancellery of Brazil
(Peru v. Ecuador)
Summary: In 1938, Peruvian forces invaded and occupied two Ecuadorian provinces. Several South American states and the United States intervened and persuaded Ecuador and Peru to conclude a protocol of peace. The resulting Rio Protocol of 1942 described the eastern border between Ecuador and Peru as the watershed line between the Zamora River and the Santiago River. The dispute surfaced again, however, in 1944 when Peru and Ecuador could not agree concerning a north-eastern section of the border known as the Cordillera del Condor where the watershed splits into several branches. In 1945, Peru and Ecuador submitted to arbitration whereby the Chancellery of Brazil tried to clarify that issue by choosing what appeared to be the most direct and easily identifiable watershed line.
The Donauversinkung (Donauversickerung) Case
German Staatsgerichtshof, 18 June 1927
(Württemberg and Prussia v. Baden)
Summary: The upper section of the Danube River flows along the border between Baden and Wurttemberg, both of which were German federal states in 1927. Along that stretch of the river, water from the Danube sinks into the porous limestone riverbed and then reemerges not far away but in the drainage basin of the Rhine River. At certain times, seepage is so great that the Danube dries up completely. In 1927, Wurttemberg and Prussia brought proceedings against Baden in the German Constitutional Court alleging that Baden had taken actions that exacerbated the seepage loss. Baden responded by claiming that Wertemberg had taken actions that unnaturally reduced the seepage loss. Because German law did not address the issues of the case, the Court looked to principles of international law. The decision issued by the Court required both Baden and Wurttemberg to avoid exploiting the natural flow of the river. Thus, both states were required to take specified actions aimed at restoring the flow and seepage under natural conditions.
Award of 4 March 1925, rendered by President Calvin Coolidge
(Chile v. Peru)
Summary: The Treaty of Ancon signed by Chile and Peru in 1883 described the northern boundary between the states as "the river Sama from its source in the Cordilleras on the frontier of Bolivia to its mouth at the sea." A land dispute arose, however, because the Sama River does not have its source in the Cordilleras on the frontier of Bolivia, and thus it was unclear which of the Sama River's tributaries should be regarded as the border. In 1922, Chile and Peru submitted to arbitration by U.S. President Coolidge who determined that none of the tributaries conformed to the treaty's border description. However, three years later in 1925, he delivered an award that instituted a boundary based on the Sama River, inasmuch as it conformed to the treaty description, as well as historical boundary lines of Peruvian provinces as they existed in 1883.
Argument and Appendix to the case of the United States before the International Boundary Commission, United States-Mexico, Hon. Eugene Lafleur, presiding under the Provisions of the Convention between the United States of America and the United States of Mexico, Concluded June 24, 1910 by the United States (1911)
(Mexico v. United States)
Summary: In the Treaty of Guadalupe Hidalgo and the Treaty of 1884, Mexico and the United States agreed on an international border. Under the treaties, the boundary follows the deepest channel of the Rio Grande, regardless of any changes in the course of the river. The 1884 treaty, however, specifies that the boundary would only follow changes in the river course that are attributable to accretion and not to avulsion. In the 1850's and 1860's the river migrated south, and in 1874 a 600 acre strip of land existed between the original riverbed and the current riverbed. The U.S. and Mexico disagreed about whether the change had been gradual enough for the international boundary to have shifted with the river. In 1910, the U.S. and Mexico submitted to arbitration to settle the dispute. The tribunal recommended a boundary on the line where the riverbed had been in 1864, just prior to the most drastic shift in the riverbed. The United States rejected this solution until 1963 when Mexico and the U.S. concluded a treaty that followed the 1911 arbitration award.
Award of 1903 rendered by the Umpire, Henrey M. Duffield, appointed by a German-Venezuelan Mixed Claims Commission
(Germany v. Venezuela)
Summary: Mr. Faber was a German subject living in Colombia and utilizing the Aulia River and the Catatumbo River for commercial purposes. Both rivers originate in Coluobia and flow north into Venezuela where they eventually combine before entering Lake Maracaibo. From 1900 to 1902, Venezuela suspended navigation on both rivers, thereby injuring the commercial interests of German citizens. In response, Germany forced Venezuela to reopen the rivers, and in 1903, Germany and Venezuela established a commission to resolve the dispute. The arbitrator stated that Venezuela, as a sovereign nation, had the right to close ports along the rivers and regulate the use of all rivers and lakes within its territory.
Award of 22 August 1893, rendered by an Anglo-Russian Commission
(Great Britain [Afghanistan] v. Russia)
Summary: In 1885, Great Britain and Russia created a commission to delimit the international boundary between Afghanistan and Russia. In 1887, the commission issued Final Protocol No. 4, which outlined the border and specified ownership and usufructuary rights of the Kushk River. Subsequently, when a dispute arose over the application of Protocol No. 4, a second commission was established. In 1893, the second commission issued a final protocol that described the exact locations were the Afghans were allowed to access water from the Kushk for irrigation and other purposes.
Arbitral Award of 22 March 1888, rendered by Grover Cleveland
(Costa Rica v. Nicaragua)
Summary: In 1858, Nicaragua and Costa Rica entered into a treaty that delimited the international boundary between them and addressed the ownership and use of the San Juan River. In 1886, a dispute arose questioning the validity of the 1858 Treaty. Thus, the states submitted to arbitration by the U.S. President to decide on the validity of the treaty. If the treaty was valid, the President was also to decide whether Costa Rica could navigate the San Juan River with war and revenue vessels. The arbitration award issued in 1888 stated that the treaty was valid and that Costa Rica did not have the right to navigate the river with war vessels. Costa Rica, could however, navigate the river with revenue vessels used for purposes of commerce. The award also addressed other disputed provisions in the treaty relating to “works of improvement” along the river.
Arbitral Awards of 19 August 1872 and 10 April 1905
(Afghanistan v. Persia)
Summary: The Helmand River originates in the mountains of Afghanistan and flows south-west before curling to the north into a region known as Sistan. For years, Afghanistan and Persia both claimed Sistan, so in 1857 the states agreed to arbitrate the issue of sovereignty over the area and to delimit an official boundary line. They appointed a British commissioner to arbitrate the issues, and in 1872 he delivered an award that formulated a boundary line based on ancient right and present possession. Under the award and the new boundary line, the Sistan region fell within the borders of Persia. Further, the award stated that neither country was to engage in activity that would interfere with the water supply needed for irrigation on both banks of the river. In 1873, the governments of both Persia and Afghanistan accepted the award.