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Itzchak E. Kornfeld

This chapter discusses a transboundary dispute adjudicated by the United States Supreme Court, Kansas v. Colorado. It involved a problem that has bedeviled the American west for over one hundred years: the apportionment of river water, mostly for irrigation purposes in a desert to semi-desert environment. Kansas v. Colorado demonstrates the competing interests of sovereignty, in the guise of water allocation between the state-litigants over water. The dispute also demonstrates the lengths to which states situated in the arid west will go for a greater share of the existing pool of water. The Court’s solution was an equitable remedy: equitable apportionment, which weighs each sovereign’s use or development of the transboundary stream. Accordingly, no sovereign, whether an upstream or downstream riparian, has the right to destroy or severely impact the interest of other riparian states. This appetite for the allocation of water is not limited to the United States. Keywords: Chapter 11 (Kornfeld): Equitable allocation of water, state sovereignty, dispute settlement, Kansas v. Colorado case, water basin, riparian rights

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Itzchak E Kornfeld

In submitting disputes over environmental harms to an international court or tribunal, the parties to the conflict seek a workable remedy for the issue(s) that triggered the action. Environmental disputes are a relatively recent class of cases that have been litigated in international courts. Indeed, it has only been over the past two decades that these disputes have found their way onto the dockets of international courts. On the other hand, the adjudication of environmental and natural resources cases, by arbitral tribunals, has long-standing origins. Four of the earliest recorded cases are the arbitrations of the Bering Fur Seals Case (US/UK) (1893), the Chamizal Arbitration (US/ Mexico) (1911), the Trail Smelter Case (US/Canada) (1941) and the Lac Lanoux Case (Spain/France) (1957). Each of the foregoing arbitrations yielded a remedy. In contrast, the International Court of Justice (ICJ) has to date, at best, provided facile or questionable remedies in the environmental disputes that it has adjudicated. This chapter is devoted to the adjudication of environmental issues that have come before both the ICJ and the International Tribunal for the Law of the Sea (ITLOS) with a specific focus on international law remedies issued by these two bodies. Initially, it analyses disputes adjudicated by the ICJ, while reviewing their outcome and the remedies the Court issued. It then evaluates three disputes adjudicated by the ITLOS. Finally, it compares the two systems, and suggests that ad hoc arbitration may be the better course for states litigating environmental disputes.