DUKE LAW JOURNAL [Vol.

46 : 931 One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon.4 Air and water pollution, and to a lesser extent groundwater contamination, can cross political boundaries. Moreover, pollution that originates in one state and spills over into another is very difficult for either jurisdiction to regulate effectively. The source state may be reluctant to impose expensive controls on local industry when the benefits will inure to political outsiders. The affected state may not be able to obtain jurisdiction over actors in the source state, or, if it can obtain jurisdiction, the affected state may have trouble enforcing any decree it enters. Given the inherent difficulties in regulation by any single state, transboundary pollution would seem to present a clear case for shifting regulatory authority from local to more centralized levels of governance.1 When one examines existing environmental regimes more closely, however, a paradox emerges. http://www.eolss.net/Sample-Chapters/C14/E1-36-02-02.pdf (has 3 cases)

Even commentators hostile to centralization of environmental law generally recognize an exception for transboundary pollution. See, e.g., Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POLY REV. 23, 33 (1996) (noting that transboundary pollution is an interstate externality providing strong economic justification for federal intervention); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555, 570 71 (1994) (similar position).

court decisions: record details (return)

Country: International Title (English): Lake Lanoux Arbitration (France v. Spain) Date of document: 16 November 1957 Type of document: Others Court name: Arbitral Tribunal Justice(s): Petrn; Bolla; De Luna; Reuter; De Visscher Reference number: R.I.A.A. 281; 24 I.L.R. 101 Link to full text: COU-143747E.pdf (English) Number of pages: 36 Language of English document: Translation of French document: This arbitration concerned the use of the waters of Lake Lanoux, in the Pyrenees. The French Government proposed to carry out certain works for the utilization of the waters of the lake and the Spanish Government feared that these works would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne of May 26, 1866, between France and Spain and the Additional Act of the same date. In any event, it was claimed that, under the Treaty, such works could not be undertaken without the previous agreement of both parties. Lake Lanoux lies on the southern slopes of the Pyrenees, on French territory. It is fed by streams which have their source in French territory and which run entirely through French territory only. Its waters emerge only by the Font-Vive stream, which forms one of the headwaters of the River Carol. That river, after flowing approximately 25 kilometers from Lake Lanoux through French territory, crosses the Spanish frontier at Puigcerda and continues to flow through Spain for about 6 kilometers before joining the river Segre, which ultimately flows into the Ebro. Before entering Spanish territory, the waters of the Carol feed the Canal of Puigcerda which is the private property of that town. On September 21, 1950, Electricit de France applied to the French Ministry for Industry for a concession, based on a scheme involving the diversion of the waters of Lake Lanoux towards the River Arige. The waters so diverted were to be completely returned into the River Carol by means of a tunnel leading from the upper courses of the Arige at a point on the Carol above the outlet to the Puigcerda Canal. The French Government, however, while accepting the principle that waters drawn off should be returned, regarded itself as bound only to return a quantity of water corresponding to the actual needs of the Spanish users. Abstract: Consequently, France was going to proceed to develop Lake Lanoux by diverting its waters towards the Ariege but a certain limited flow of water corresponding to the actual needs of the Spanish frontagers would be assured at the level of the outlet to the Puigcerda Canal. Spain was opposed to any diversion of the waters of Lake Lanoux. The Tribunal examined the Treaty of Bayonne of May 26, 1866 and the Additional Act, as well as the arguments brought forward by both Governments. Regarding the question whether France had taken Spanish interests into sufficient consideration, the Tribunal stressed that in determining the manner in which a scheme had taken into consideration the interests involved, the way in which negotiations had developed, the total number of the interests which had been presented, the price which each Party had been ready to pay to have those interests safeguarded, were all essential factors in establishing, with regard to the obligations set out in Article 11 of the Additional Act, the merits of that scheme. In conclusion, the Tribunal was of opinion that the French scheme complied with the obligations of Article 11 of the Additional Act. The Tribunal decided that in carrying out, without prior agreement between the two Governments, works for the utilization of the waters of Lake Lanoux in the conditions mentioned in the Scheme for the Utilization of the Waters of Lake Lanoux, the French Government was not committing a breach of the provisions of the Treaty of Bayonne of May 26, 1866, and the Additional Act of the same date." Subject(s): Water Keyword(s): Contract/agreement; water rights Court decision ID COU-143747 number:

The more than 3,600 agreements and treaties signed are an achievement in themselves, but a closer look at them still reveals significant weaknesses. What is needed are workable monitoring provisions, enforcement mechanisms, and specific water allocation provisions that address variations in water flow and changing needs. The 1997 United Nations Convention on Non-Navigational Uses of International Watercourses is one international instrument that specifically focuses on shared water resources. It established two key principles to guide the conduct of nations regarding shared watercourses: "equitable and reasonable use" and "the obligation not to cause significant harm" to neighbours. However, it is up to countries themselves to spell out precisely what these terms mean in their watersheds. There is a consensus among experts that international watercourse agreements need to be more concrete, setting out measures to enforce treaties made and incorporating detailed conflict resolution mechanisms in case disputes erupt. Better cooperation also entails identifying clear yet flexible water allocations and water quality standards, taking into account hydrological events, changing basin dynamics and societal values. Sources: Water Without Borders. Backgrounder. United Nations Department of Public Information, 2004 Human Development Report 2006. Beyond scarcity: Power, poverty and the global water crisis. Chapter 6. UNDP, 2006. http://www.un.org/waterforlifedecade/transboundary_waters.shtml http://gurukul.ucc.american.edu/ted/sandiego.htm Water Problems San Diego-Tijuana

An integrated approach Transboundary as well as national water development and management are strongly linked to sustainable and responsible growth. Thus, an integrated approach favouring long-term and contingency planning is needed, building resilience into vulnerable systems, with an emphasis on increased diversity and exibility. New management approaches should be based on regional cooperation principles, focusing on river basins and aquifer systems. Integrated Water Resources Management (IWRM) is a process that promotes coordinated and efcient development

Exchange of information and joint monitoring and assessment Information based on well-organized measurement networks and monitoring programmes is a prerequisite for accurate assessments of water resources and problems. Assessment is essential for making informed decisions and formulating policy at the local, national and transboundary levels. Moreover, basin management by two or more countries calls for comparable information. A common basis for decision-making requires harmonized (if not standardized), compatible assessment methods and data management systems as well as uniform reporting procedures.http://www.unwater.org/downloads/UNW_TRANSBOUNDARY.pdf

The provisional measures sought by Moytan would therefore irreparably prejudice its sovereign right to implement sustainable economic development projects in its own territory. It pointed out in this connection that the pulp mill projects represented the largest foreign investment in Mosho history, that construction in itself would create many thousands of new jobs and that, once in service, the mills would have an economic impact of more than $350 million per year, representing an increase of fully 2 per cent in Uruguays gross domestic product
At dispute in the case was the development of a system of locks on the Danube River pursuant to a 1977 treaty between Hungary and Czechoslovakia.2The purposes of the project, which began in 1978, were to produce hydroelectricity, improve navigation, and protect against flooding. In 1989 Hungary decided to abandon the project, largely due to intense criticism from Hungarian scientists and environmentalists centring on threats to groundwater and wetlands. In response, Slovakia attempted to continue the project by unilaterally diverting the river to serve a power station on its

Gabcikovo-Nagymaros Dam Case, 1997 I.C.J. at pg 18.

territory.3The parties took their dispute to the ICJ and requested that the court consider their rights and obligations under the 1977 treaty.4

This case related to a dispute between the United Kingdom and Albania corfu channel case concerning the incident in which British naval warships, while passing through the Corfu Channel within the Albanian waters, came into contact with mines and were damaged. It was alleged by the United Kingdom as Applicant that Albania was responsible in international law for having laid the mines or at least having permitted the laying of the mines in question within its own territorial jurisdiction.

3 4

id. at 23.. id. at 24 (noting that on October 28, 1992, the parties agreed to submit the dispute to the ICJ).