THE LAKE LANOUX ARBITRATION (France v Spain)

FACTS

• This case is about the use of waters of Lake Lanoux in the Pyrenees. The French Government
proposed to carry out certain works for the use of the waters and the Spanish Government
feared that these works would adversely affect their rights and interests, in contravention of the
Treaty of Bayonne and the Additional Act. Spain contends that there should be previous
agreement of both parties.
• The Franco-Spanish Frontier was fixed by 3 successive treaties signed at Bayonne. These
treaties delimit the frontier from the Valley of Andorra to the Mediterranean Sea.
• The 3 Treaties of Bayonne were completed by an Additional Act of May 26, 1866 which
provided for the control and enjoyment of waters of common user between Spain and France
• Example
• Flowing waters can change jurisdiction at the moment when they pass from one
country to another, and when the watercourses constitute a boundary, each
State exercises its jurisdiction up to the middle of the flow.
• Three further additional conventions were attached to the Treaties of Bayonne, including a
Final Act of the Delimitation of the International Frontier of the Pyrenees. However, none of
these concern the River Carol, the river which flow through the French Territory and crosses
the Spanish frontier right after Lake Lanoux.
• As schemes for diverting the waters of the Lake continued to be studied by French authorities,
the Spanish government communicated to the French Ministry of Foreign affairs to recall their
desire to be consulted and requested that steps be taken to appoint an international
commission which would examine in the name of the two Governments in accordance with the
provisions of existing treaties.
• As a result of this, the French Ministry of Foreign Affairs communicated to the Spanish
Ambassador the fact that the French were entirely agreeing with the Spanish considering that
the question of diversion of the waters of Lanoux could be resolved only with the agreement of
the Spanish Government.
• Series of exchanges transpired the following years regarding the establishment of the
International Commission and its delegated tasks.
• The French wished to restrict the commission’s mandate to taking note of representations
made by Spanish users and ascertaining whether they were well-founded.
• The Spanish argued that the Commission had the power to deal with all other questions
concerning the scheme which the respective delegations might deem it necessary to
examine.
• On 1950, Electricié de France applied to the French Ministry for Industry for a concession
based on a scheme of diverting water from Lake Lanoux towards the River Ariege which are
to be returned to the River Carol through a tunnel leading from the upper courses of the Ariege.
• The reply of the Spanish Government was to request that the work on Lake Lanoux should
not be undertaken until after a meeting of the Mixed Commission of Engineers. The French
Government replied, by a Note hat even though the Additional Act did not provide that works
likely to affect the system of the waters should be suspended at the request of the other party—
 it would willingly give an assurance that nothing had yet been undertaken or was about to be
undertaken in 5 connection with Lake Lanoux.
• The Spanish Government feared that these works would adversely affect Spanish rights and
interests, contrary to the Treaty of Bayonne, and could only be undertaken with prior consent
of both Parties. France and Spain were unable to resolve this issue by negotiation, and
therefore submitted it to arbitration in 1956.
• 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.
• Special mixed commission met at Madrid where the French produced details of a scheme.
• 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

ISSUE/S
Whether or not 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, 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.

HELD

The Court found that the conflicting interests generated by the industrial use of international rivers
must be reconciled by mutual concessions embodied in the agreements which needed to be
interpreted.

The Court ruled that the the works planned by France was within its territory. In terms of violation
of the Treaty of Bayonne and the Additional Act, it ruled that the diversion with restitution of water
it envisioned in the French project was not contrary to the of Bayonne and to the Additional Act
concluded since the unity of a basin is sanctioned at a juridical level only to the extent that it
corresponds to human realities. The water by which 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, as contemplated in the French project, does not change a state of affairs
organized for the working of the requirements of social life.

The Court went further, stating that the Treaty and the Additional Act or customary international
law does not declare any rule which prohibits one state which acts to protect its legitimate
interests, to put itself in a situation that would permit it to violate its international pledges to injure
a neighboring state.

The Court cited Article 1 of the Multilateral Convention of Geneva of 1923 with regard to the
utilization of hydraulic forces of interest to several states to the effect that: 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 regard to other obligations pursuant to Article 11 of the Additional Act, the Court stated that
“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.”

In this case, France had given notice of its projects in relation to Lake Lanoux, and this was not
contested. France has maintained to the end the solution which consists in diverting the waters
of the Carol with full restitution. By making this choice, France is only making use of its right; the
right to develop works on Lake Lanoux which is in French territory. The financing and the
responsibility of the project are to be shouldered by France which the best judgment of works of
public utility which are to be executed in its own territory.

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

The Court stated that the works envisaged by France did not infringe the Spanish rights under
the Treaty of Bayonne and its Additional Act of 1866, because France had taken adequate
measures to prevent damage to Spain and Spanish users, and for other reasons.

ADDITIONAL ISSUE
On the issue of whether or not the prior consent of Spain would be necessary:
The Court held that such an essential restriction on sovereignty could only follow from exceptional
circumstances, such as regimes of joint ownership, co-imperium or condominium but not from the
facts of the present case. To hold that jurisdiction in a certain field can no longer be exercised but
only by virtue of an agreement between the two states is to place an essential restriction on the
sovereignty of a state, and such restriction could only be admitted if there were clear and
convincing evidence presented.

In this case, prior agreement would constitute admission of a right of assent/veto discretionary on
the part of one state which paralyzes the exercise of territorial jurisdiction of the other state. In
this case, France was under an obligation to provide information to and consult with Spain and to
take Spanish interests into account in planning and carrying out the projected works. According
to the Tribunal, France had sufficiently done so.

RELEVANT LAWS and CASES CITED

—> Treaty of Bayonne
—> Additional Act—> Multilateral Convention of Geneva of 1923