AZ vs. CA:22 California Exhibits, Vol. XXII; Nos. 5001-5002; 5101-5123; 5200A-5205A; 5521-5588A; 5601-56215521-5588A; 5601-5621

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-122- (2) Italy1 By a convention of 1914, France and Italy had provided for joint regulation of the use of the waters of the river Roji, which flows partly in each country. Article I of the convention provided that the parties would mutually refrain from using the hydraulic power of the river or its tributaries in their respective jurisdictions in such a way as to lead to "a noticeable modification of the existing regime and of the natural flow of the water in the territory of the lower riparian State". A permanent international commission was set up by the convention to apply the principles therein agreed to. Plaintiffs, alleging that new power plants erected by defendants on Italian territory had adversely affected their rights in the Roji, recovered a judgment (damages for breach of a private contract referred to in the convention) in the French courts. The present suit in the Italian courts was based on the French judgment (under another convention giving the judgments of the courts of either country the effect of res judicata in the other). The Court of Appeals of Genoa refused to recognize the effect of the French judgment and was affirmed by the Court of Cassation. The Court pointed out that 3ince the activities of the defendants could not have been carried on but by authorization of the Italian government, the French suit had in effect been an attempt to implead a foreign state, a matter beyond the competence of a national court. As an alternative ground of decision the court held that the treaty had destroyed the efficacy, as between private parties, of the contract relied on by plaintiffs; and, by setting up an international commission, had in any event ousted the jurisdiction of the ordinary courts. In holding that the treaty had these effects on the controversy, the court discussed in general terms the rules of law applicable to international rivers: International law recognises the right on the part of ©very riparian State to enjoy as a participant of a kind of partnership created by the river, a ill the advantages deriving from it for the purpose of securing the welfare and the economic and civil progress of the nation..... However, although a State in the exercise of its right of sovereignty, may subject public rivers to whatever regime it deems best, it cannot disregard the 1. Socie"te" iSnergie filectrique du Littoral MSditerraneen v. Campagnia Imprese Elettriche Liguri (Decision of Italian Court of Cassation, February 13, 1939), Annual Digest of Public International Law Cases Lauterpacht, 1938-40, No. 47.