¹ The demand for water considerably increases as a country’s economy develops; this is so even in highly developed countries. It is estimated that in the United States the daily water withdrawal will grow from 300.3 billion gallons (referred to as bgd) in 1954 to 559 bgd in 1980 to 888.4 bgd in 2000, and that the daily water withdrawal for consumptive use will grow from 109.5 m 1954 to 189-9 m 1980 to 853-1 in 2000: see McGuinness, “Water for the United States: An Analysis of the Report of the Senate Select Committee on National Water Resources,” 2 Natural Resources J. 187, 194 (1962).

² Andrassy, “L’utilisation des eaux des bassins fluviaux internationaux,” 16 Revue Egyptienne de Droit International 23, 26, 37 (1960).

³ Resolution on the Utilisation of Non-maritime International Waters (except for Navigation), adopted by the Institute of International Law at its Session at Salzburg (September 4-13, 1961), 49 Annuaire de l’Institut de Droit International, Tome II, 381 (1961).

⁴ Declaration of the Seventh Pan-American Conference on the Industrial and Agricultural Use of International Rivers adopted at Montevideo on December 24, 1933, in 28 Am. J. Int’l L., Supp., 59-60 (1934).

⁵ 10 Inter-American Bar Association, Proceedings, 82 (1957).

⁶ Resolution on the Uses of the Waters of International Rivers, in Report of the Forty-Eighth Conference of the International Law Association Held at New York, September 1–7, 1958, at viii-x (1959).

⁷ See, for example, Eagleton, , “The Use of the Waters of International Rivers,” 33 Can. Bar Rev. 1018, 1021Google Scholar; Brierly, The Law of Nations 231–32 (6th ed. 1963).

⁸ Lake Lanoux Case (France - Spain), Award of November 16, 1957, 53 Am. J. Int’l L. 156 (1959). It is also supported indirectly by the case of The Diversion of Water from the Meuse, P.C.I.J., Ser. A/B, No. 70, at 23, 25 0937) ; there the court refused to condemn as a violation of a right of navigation guaranteed by treaty a diversion that did not set up an excessive current in a canal or deplete the river to such an extent as to prejudice navigation.

⁹ 53 Am. J. Int’l L. 156, 165 (1959).

¹⁰ International Regulations regarding the Use of International Watercourses for purposes other than Navigation, adopted by the Institute of International Law at Madrid, April 20, 1911, 24 Annuaire de l’Institut de Droit International 365-67 (1911). The consent of a co-riparian state is required only for changes in a boundary river causing detriment to its bank of the river and for changes in a successive river causing it to enter its territory at a different place.

¹¹ 282 U.S. 660 (1931).

¹² 283 U.S. 336 (1931).

¹³ 274 U.S. 488 (1937).

¹⁴ 206 U.S. 46 (1907) ; also Colorado v. Kansas, 320 U.S. 283 (1943).

¹⁵ 283 U.S. 423 (1931); 298 U.S. 558 (1936).

¹⁶ 325 U.S. 589 (1945).

¹⁷ Ibid., 622.

¹⁸ Ibid., 658. It is true that this judgment was a dissenting one, but that does not impair the validity of this statement; as we have noted, the majority judges assumed that any further utilization of water in Colorado would injure existing uses downstream, and they would undoubtedly have agreed with the quoted statement.

¹⁹ Supra note 11.

²⁰ Supra note io, at 164.

²¹ Supra note 3.

²² See the second paragraph of the preamble, ibid.

²³ 48 Annuaire de l’Institut de Droit International, Tome I, 213, 257 (1959).

²⁴ Ibid., 319, 329–30. It should be noted that the present article 4 is worded differently from that in the earlier draft to which M. Gros objected; but Professor Andrassy’s reply is still apposite.

²⁵ 49 Annuaire de l’Institut de Droit International, Tome II, 84, 147 ( 1961 ).

²⁶ Supra note 11, at 667, 673.

²⁷ Supra notes 4 and 5.

²⁸ Supra note 9.

²⁹ Ibid., 167.

³⁰ Ibid., 169.

³¹ Ibid., 166.

³³ Supra note 9, at 161.

³³ Ibid., 161–62.

³⁴ The enormous economic advantage of ignoring the natural geographical limits of river basins and using them to meet the greatest needs of widely-scattered areas is evident in the Snowy Mountains scheme in Australia, involving a trans-mountain diversion of waters from the Snowy River to the Murray River; in the vast Feather River Project to transfer surplus water some 750 miles from northern to southern California, requiring the pumping of water over elevations of 3,167 feet through mountains (there has been a suggestion that the federal government wishes California to abandon this project and join in a larger federal interstate scheme) ; and in the Fryingpan-Arkansas Project to divert waters across a mountain from the Colorado River to the Arkansas River in Colorado. For a description of the Feather River Project, see Warne, “California Pioneers New Water Development Concepts,” 2 Natural Resources J. 248, 255–59 (1962); and for the Fryingpan-Arkansas Project, see Hearings Before the Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, House of Representatives, 85th Cong., ist Sess. 5 (1957). For an example of diversion out of an international river basin, that of the Drava River, see Andrassy, supra note 2, at 31-33. It may be added too that the settlement of the Indus River dispute was based on provisions for transporting large quantities of water nearly 200 miles in some instances from one part of the river basin to meet the needs of another part: see the Indus Waters Treaty i960, between India, Pakistan, and the International Bank for Reconstruction and Development, September 19, i960, 419 U.N.T.S. 125; 1 Indian J. Int’l L. 341 (1960–61).

³⁵ I Hyde, International Law, Chiefly as Interpreted and Applied by the United States 565 (2d rev. ed. 1945); Simsarian, Diversion of International Waters 106 (1939); and for the famous opinion of Attorney-General Harmon of the United States, see Treaty of Guadalupe Hidalgo — International Law, 21 Ops. Att’y Gen. 274, 280–83 ( 1895).

³⁶ Supra note 3.

³⁷ Supra note 6.

³⁸ For the United States argument, see the letter of William M. Evarts, Secretary of State, to Juan N. Navarro, Mexican Minister, June 15, 1880, Foreign Relations of the United States 783 (1880). For the Mexican argument, see the letter of Minister Romero to Richard Olney, Secretary of State, Oct. 21, 1895, American and British Claims Arbitration, No. 83: The Rio Grande Claim, Appendix to the Answer of the United States 200 (1923). See generally Simsarian, op. cit. supra note 35, at 39–47.

³⁹ Bloomfield, and FitzGerald, , Boundary Waters Problems: Canada and the United States 174 (1958).Google Scholar

⁴⁰ Ibid., 43.

⁴¹ See Lecaros, , “International Rivers: The Lauca Case,” 3 Indian J. Int’l L. 133 (1963)Google Scholar; de Chile, Republica, Ministerio de Relaciones Exteriores, La Cuestión del Rio Lauca (Santiago, Chile. 1963)Google Scholar; Chinel, , La Desviación del Rio Lauca por Chile (LaPaz, Bolivia. 1963).Google Scholar

⁴² For example, see another statement of Mr. Justice Roberts taken from his judgment for the Supreme Court in Colorado v. Kansas, 320 U.S. 383, 393 (1943) : “The lower state is not entitled to have the stream flow as it would in nature regardless of need or use.” In Washington v. Oregon, 297 U.S. 5l7 (i935)J the court refused to restrain a total diversion of a river but other considerations than the physical changes in the river led to this conclusion.

⁴³ For the French original, see supra note 10, at 366; this English translation is taken from Sevette, Legal Aspects of Hydro-Electric Development of Rivers and Lakes of Common Interest, U.N. Doc. No. E/ECE/136, at 262 (1953).

⁴⁴ Supra note io, at 348–49.

⁴⁵ Ibid., 350.

⁴⁶ Ibid., 163, 178, 360, 361.

⁴⁷ Ibid., 162, 172.

⁴⁸ Ibid., 360–62.

⁴⁹ Ibid., 176.

⁵⁰ It is assumed that the water taken would be put to beneficial use. Questions of wasteful uses or uses inspired by malice will be referred to later.

⁵¹ Ibid., 162.

⁵² Ibid., 172–73.

⁵³ Ibid., 351.

⁵⁴ See supra note 3.

⁵⁵ See supra notes 4 and 5.

⁵⁶ Huber, Max, “Ein Beitrag zur Lehre von der Gebietshoheit an Grenzflüssen,” 1 Zeitschrift fur Volkerrecht und Bundesstaatsrecht 159, 163, 176 (1907).Google Scholar See also Reitzenstein, , Das Recht der Staaten an Gemeinsamen Flüssen 27–28 (1911).Google Scholar For a criticism of Professor Huber’s views, see Bar, von, “L’exploitation industrielle des cours d’eau internationaux,” 17 Revue Générale de Droit International Public 281, 284 (1910).Google Scholar

⁵⁷ I Oppenheim, International Law 474–75 (8th ed. Lauterpacht 1955).

⁵⁸ Cano, , “The Juridical Status of International (Non-Maritime) Waters in the Western Hemisphere,” published in Principles of Law Governing the Uses of International Rivers and Lakes. Resolution Adopted by the Inter-American Bar Association at its Tenth Conference Held in November, 1957, at Buenos Aires, Argentina, together with Papers Submitted to the Association, 73, 84 (Washington, 1958).Google Scholar

⁵⁹ Fauchille, I, Traité de Droit International Public, Part 2, 450-51 (8th ed. 1925).Google Scholar

⁶⁰ Sevette, op. cit. supra note 43, at 86, 211. At 86, he wrote: “The application of Grotius’s theory to the development of waterways would lead us along a very dangerous road. It would enable an upstream State, in case of necessity, to divert a waterway if, for example, the downstream State was not exploiting it.”

⁶¹ Sauser-Hall, , “L’utilisation industrielle des fleuves internationaux,” 83 Recueil des Cours 471, 554–55 (1953–II).Google Scholar

⁶² Supra note 2, at 36. See also Andrassy, , “Les relations internationales de voisinage,” 79 Recueil des Cours 77 (1951–II).Google Scholar

⁶³ Smith, , The Economie Uses of International Rivers 147–48 (1931).Google Scholar

⁶⁴ Treaty of Guadalupe Hidalgo — International Law, 21 Ops. Att’y Gen. 274, 282–83 (1895).

⁶⁵ Austin, , “Canada-United States Practice and Theory Respecting the International Law of International Rivers: A Study of the History and Influence of the Harmon Doctrine,” 37 Can. Bar Rev. 393 (1959).Google Scholar

⁶⁶ Hearings Before the Senate Committee on Foreign Relations on the Treaty with Mexico Relating to the Utilization of the Waters of Certain Rivers, 79th Cong., ist Sess., pt. 1, 1738–82 (1945).

⁶⁷ See supra note 65, at 430–31.

⁶⁸ See the Waterton-Belly Rivers Reference, Docket No. 57 of the International Joint Commission (1948), and the Waneta Dam and Reservoir Application, Docket No. 66 of the International Joint Commission (1951), in Bloom-field and FitzGerald, op. cit. supra note 39, at 177 and 196 respectively.

⁶⁹ Treaty relating to boundary waters and questions arising along the boundary between the United States and Canada, January 11, 1909. 36 Stat. 2448; T.S. No. 548; III Redmond 2607.

⁷⁰ See Sevette, op. cit. supra note 43, at 51, 106–07; Andrassy, supra note 2, at 31–33; Berber, Rivers in International Law 77–80 (1959).

⁷¹ See Berber, , “The Indus Water Dispute,” 6 Indian Yearbook of International Affairs 46 (1957)Google Scholar; Knauth, , “The Indus River System,” 54 Am. Soc. Int’l L., Proceedings, 134 (1960)Google Scholar; Laylin, , “Indus River System — Comments,” Ibid., 144.Google Scholar

⁷² For this provision, see the Bavarian-Austrian Agreement concerning the Rissbach River, October 16, 1950, referred to in Sevette, op. cit. supra note 43, at 106–07; and the Indus Waters Treaty 1960, supra note 34. For a similar provision, see the Convention between the United States and Mexico for the equitable distribution of the waters of the Rio Grande for irrigation purposes, May 21, 1906. 34 Stat. 2953; T.S. No. 455; I Malloy 1212.

⁷³ Supra note 69.

⁷⁴ Docket No. 41 of the International Joint Commission (1940), in Bloomfield and FitzGerald, op. cit. supra note 39, at 154–57

⁷⁵ See Bourne, , “The Columbia River Controversy,” 37 Can. Bar. Rev. 444 (1959).Google Scholar

⁷⁶ Treaty between Canada and the United States of America relating to Cooperative Development of the Water Resources of the Columbia River Basin, January 17, 1961, 44 Dep’t State Bull. 234 (1961); and Protocol to the Columbia River Treaty annexed to An Exchange of Notes dated January 22, 1964, between Canada and the United States regarding the Columbia River Treaty, 50 Dep’t State Bull. 201 (1964). See also The Columbia River Treaty, Protocol, and Related Documents issued by the Departments of External Affairs and Northern Affairs and National Resources, Canada (1964).

⁷⁷ Berber, op cit. supra note 70, at 265-66. Professor Berber’s opinion is echoed by Indian writers: see Bains, , “The Diversion of International Rivers,” 1 Indian J. Int’l L. 38 (1960–61)Google Scholar; Raju, , “Principles of Law Governing the Diversion of International Rivers,” 2 Indian J. Int’l L. 370 (1962).Google Scholar For a recent Russian view, see Baskin, , “International Juridical Questions Regarding the Utilisation of Rivers (Navigation, Production of Electric Power, Irrigation),” Soviet Year-book of International Law, 1961, at 252 Google Scholar; he advocates settling disputes by treaty, suggesting that all river problems can be speedily settled if the principles of peaceful co-operation and mutual respect of state sovereignty are applied. This sounds like a Harmon-type view of the law.

⁷⁸ I Hyde, op. cit. supra note 35, at 565, 571.

⁷⁹ Kluber (1821), Heffter (1888), Bousek (1913), and others listed in Berber, op. cit. supra note 70, at 14–19; and in Sevette, op. cit. supra note 43, at 51–67.

⁸⁰ For lists of these treaties, see: Ogilvie, , International Waterways 180–380 (1930)Google Scholar; Smith, op. cit. supra note 63, at 159–216; Berber, op. cit. supra 70, at 52-148; Sevette, op. cit. supra note 43, at 95-204, 309–28; Principles of Law and Recommendations on the Uses of International Rivers. Statement of Principles of Law and Recommendations with a Commentary and Supporting Authorities Submitted to the International Committee of the International Law Association by the Committee on the Uses of Waters of International Rivers of the American Branch 21–24 (Washington, May 1958) (hereinafter called the “American Branch Report”) ; Cano, supra note 58, at 108–11.

⁸¹ Lake Lanoux Case (France - Spain), supra note 8, is the only international decision in which an opinion was expressed on the general principles of law; although the tribunal had to base its decision on the treaty, it clearly did not accept the notion that apart from treaty a state is not subject to legal restraint in the utilization of the waters of an international river.

⁸² For references to relevant cases, see the American Branch Report, supra note 80, at 30-35. However, in one national decision, The Leitha River case, 7 Am. J. Int’l L. 653 (1913), in which Hungarians were protesting against diversion of the river in Austria that would hurt them downstream in Hungary, the Imperial Royal Administrative Court of Austria expressed the opinion that there was no customary international law on the subject at that time, thus supporting the view of Attorney-General Harmon.

⁸³ See the 1911 Madrid Declaration, supra note 10; the 1933 Declaration of Montevideo, supra note 4; the 1957 Buenos Aires Resolution, supra note 5; the 1958 New York Resolution, supra note 6; and the 1961 Salzburg Resolution, supra note 3.

⁸⁴ For some of these authors, see Berber, op. cit. supra note 70, at 19–40; Sevette, op. cit. supra note 43, at 51–67; The American Branch Report, supra note 80, at 38–41.

⁸⁵ Smith, op. cit. supra note 63, at 8, 145–47.

⁸⁶ Supra note 2.

⁸⁷ Supra note 10.

⁸⁸ Supra note 3.

⁸⁹ Convention relating to the development of hydraulic power affecting more than one state and protocol of signature, Geneva, December 9, 1923, 36 L.N.T.S. 77. It came into force on June 30, 1925, but it was ratified by only 10 states. See also the Barcelona Convention, April 20, 1921, 7 L.N.T.S. 35: article 10, paragraph 6, made an exception to the rule that a riparian state could not prejudice navigation in an international river in its territory providing that it may “close the waterway to navigation, if the navigation on it is of very small importance, and if the State in question can justify its action on the ground of an economic interest clearly greater than that of navigation.”

⁹⁰ Supranote 6, Agreed Principles No. 2 and 3.

⁹¹ The 1933 Declaration of Montevideo, supranote 4: the 1957 Buenos Aires Resolution, supranote 5.

⁹² For the views of Chile and Bolivia on this aspect of the Lauca River dispute, see: Statement of Chilean Minister of Foreign Affairs to Chairman of the Council of the Organization of American States (hereinafter called O.A.S.), April 19, 1962, at 7; Statement of Bolivian Ambassador at Washington to the Chairman of the Council of the O.A.S., April 20, 1962, at 4–5.

⁹³ Supra note 59.

⁹⁴ [1957] I.L.R. ιοί, 124.

⁹⁵ 3 U.N. Rep. Int’l Arb. Awards, 1905, 1965 (1949); 35 Am. J. Int’l L. 684, 716 (1941).

⁹⁶ [1927-28] Ann. Dig. Pub. Int’l L. Cases 128.

⁹⁷ Ibid., 131.

⁹⁸ Hackworth, I, Digest of International Law 596, 598.Google Scholar

⁹⁹ Ibid., 598–99.

¹⁰⁰ 206 U.S. 46 (1907).

¹⁰¹ Ibid., 113–14.

¹⁰² 320 U.S. 383, 391–92 (1943).

¹⁰³ 200 U.S. 496, 521 (1906).

¹⁰⁴ 282 U.S. 66ο, 669 (1931)

¹⁰⁵ 259 U.S. 419 (1922).

¹⁰⁶ 325 U.S. 589 (1945).

¹⁰⁷ 24 Annuaire de l’Institut de Droit International 156, 162, 176 ( 1911 ). M. de Bar’s words were “minime ou peu considérable” and “modification & qui n’est pas grave.”

¹⁰⁸ 48 Annuaire de l’Institut de Droit International, Tome I, 131, 184–87, 253 (1959).

¹⁰⁹ Andrassy, , “L’utilisation des eaux des bassins fluviaux internationaux,” 16 Revue Egyptienne de Droit International 23, 37 (1960)Google Scholar; Andrassy, , “Les relations internationales de voisinage,” 79 Recueil des Cours 77, III (1951–II).Google Scholar

¹¹⁰ Arechaga, , “International Legal Rules Governing Use of Waters from International Watercourses,” 2 Inter-American L. R. 329, 332 (1960).Google Scholar

¹¹¹ Supra note 108, at 187.

¹¹² Sevette, op. cit. supranote 43, at 211. For him the prohibition was against causing “serious and lasting” injury. The use of the words “a grave and permanent prejudice” were suggested by M. Gros for the 1961 Salzburg Resolution, but Professor Andrassy, the rapporteur of the committee of the Institute of International Law, rejected the notion of permanence because even a temporary injury can be very serious: see supranote 108, at 331.

¹¹³ Sevette, op. cit. supranote 43, at 211–12.

¹¹⁴ Ibid., 175.

¹¹⁵ For example, Professor Arechaga mentions only “compensation owed by reason of substantial injury”: supranote no, at 334.

¹¹⁶ Report of the Nile Commission, 1935, 130 British and Foreign State Papers 106, 116 (1929).

¹¹⁷ Ibid., 122.

^1l8 See Hosni, , “The Nile Regime,” 17 Revue Egyptienne de Droit International 70, 75, 76, 82 (1961).Google Scholar

¹¹⁹ For a short description of the problem and the commission’s recommendations, see Laylin, , “Principles of Law Governing the Uses of International Rivers: Contributions from the Indus Basin,” 51 Am. Soc. Int’l L., Proceedings, 20, 23–26 (1957).Google Scholar

¹²⁰ The Government of India Act, 1935, 25 and 26 Geo. 5, c.42.

¹²¹ See section 8 of The Northern India Canal and Drainage Act, Act No. VIII of 1873, published in II Unrepealed Central Acts of India, 187–1881, at 207 (1938).

¹²² See supra note 119.

¹²³ This statement from the Report of the Indus (Rau) Commission, Vol. I, at 52 (1942) is taken from the American Branch Report, supranote 80, at 98–99.

¹²⁴ See Fisher, , “Western Experience and Eastern Appropriation Proposals,” published in The Law of Water Allocation in the Eastern United States 75 95–98 (Haber, and Bergen, ed. 1958)Google Scholar; Trelease, , “A Model State Water Code for River Basin Development,” 22 Law & Contemp. Prob. 301, 305–06 (1957).CrossRefGoogle Scholar

¹²⁵ See Hutchins, , “Background and Modern Developments in Water Law in the United States,” 2 Natural Resources J. 416, 418–19 (1962)Google Scholar; Hutchins, , Selected Problems in the Law of Water Rights in the West 168.Google Scholar

¹²⁶ Ibid.

¹²⁷ 259 U.S. 419, 484 (1922).

¹²⁸ See Nebraska v. Wyoming, 325 U.S. 589, 618 (1945).

¹²⁹ See Hutchins, , “Background and Modern Developments in Water Law in the United States,” 2 Natural Resources J. 416, 419 (1962).Google Scholar He writes of the experience in the American prior appropriation cases as follows: “Despite the wealth of authoritative expressions on the need for conserving and making beneficial use of water, wasteful practices were tolerated by the courts in many areas. There are multiple causes, among them … mounting costs of making substantial improvements … With respect to material and expensive changes in practice, ‘Decrees fixing the extent of rights follow rather than lead in such improvements in practice’.” See also The Law of Water Allocation in the Eastern United States 418–22 (Haber and Bergen ed. 1958).

¹³⁰ For a suggestion to this effect, see Washington v. Oregon, 297 U.S. 517, 523-24, 527 (1935), where the court refused to enjoin upstream utilization of all the waters of a river, but intimated that its decision might have been different if the water had been wasted or misapplied.

¹³¹ Supranote 128, at 658.

¹³² Sa See supranote 6.

¹³³ See article I, paragraphs 2 and 3, supranote 5.

¹³⁴ Griffin, , Legal Aspects of the Use of Systems of International Waters. Memorandum of the State Department, S. Doc. No. u8, 85th Cong., 2d Sess. 90 (1958).Google Scholar

¹³⁵ Bloomfield and FitzGerald, op. cit. supranote 39, at 177–80.

¹³⁶ The statements in Washington v. Oregon, supranote 130, support Canada’s argument.

¹³⁷ See the article by Hutchins, supranote 139, at 418–19, 436–437.

¹³⁸ See Niles, , “Legal Background of the Colorado River Controversy,” 1 Rocky Mt. L. Rev. 73, 77–78 (1929).Google Scholar

¹³⁹ See Marquis, , Freeman, , and Heath, , “The Movement for New Water Rights Laws in The Tennessee Valley States,” 23 Tenn. L. Rev. 797–801, 831–36 (1955)Google Scholar; Piper, and Thomas, , “Hydrology and Water Law: What is their Future Common Ground, published in Water Resources and the Law 7, 24 (University of Michigan Law School, Ann Arbor. 1958).Google Scholar

¹⁴⁰ See supra note 129, at 417–18, 420–21, 434–39, 443–44.

¹⁴¹ See supranote io.

¹⁴² See Smith, op. cit. supranote 63, at 156; The American Branch Report, supra note 80, at 41.

¹⁴³ See Sevette, op. cit. supranote 43, at 47–48, 263–64; Berber, op. cit. supranote 70, at 125.

¹⁴⁴ See Smith, op. cit. supranote 63, at 155–58. See also Sauser-Hall, supranote 61, at 531.

¹⁴⁵ Smith, op. cit. supranote 63, at 158.

¹⁴⁶ Supranotes 4 and 5.

¹⁴⁷ Sevette, op. cit. supranote 43, at 284–85.

¹⁴⁸ See supranote 92; also Lecaros, , “International Rivers: The Lauca Case,” 3 Indian J. Int’l L. 133 (1963).Google Scholar The Lauca River dispute illustrates the difficulties of international river development even when a body of applicable principles are agreed to; perhaps, it illustrates better the interdependence of river development and other matters, for it is suspected that the attitude of Bolivia to the Chilean project is not unrelated to the old controversy about claims of access to the sea.

¹⁴⁹ See the 1958 Resolution of the International Law Association, supranote 6; the 1961 Salzburg Resolution of the Institute of International Law, supranote 3; Laylin, and Bianchi, , “The Role of Adjudication in International River Disputes: The Lake Lanoux Case,” 53 Am. J. Int’l L. 30 (1959)CrossRefGoogle Scholar; Griffin, , “The Uses of Waters of International Drainage Basins under Customary International Law,” 53 Am. J. Int’l L. 50, 79–80 (1959)Google Scholar; Arechaga, supranote no, at 333–34; Van Alstyne, , “International Law and Interstate River Disputes,” 48 Calif. L. Rev. 596, 621–22 (1960)Google Scholar; Lake Lanoux Case (France - Spain), [1957] I.L.R. ιοί, 129–30.

¹⁵⁰ For the Dubrovnik Resolution and the first report of the committee, see Report of the Forty-Seventh Conference of the International Law Association Held at Dubrovnik, August s6 - September i, 1956, at x-xii, 244-48 (1957).

¹⁵¹ See the American Branch Report, supranote 80, at 6–9.

¹⁵² Laylin, , “Principles of Law Governing the Use of International Rivers,” 10 Inter-American Bar Association, Proceedings, 146, 155, 172 (1957).Google Scholar

¹⁵³ Ibid., 172.

¹⁵⁴ See Laylin, , “Principles of Law Governing the Use of International Rivers,” published in Principles of Law Governing the Uses of International Rivers and Lakes. Resolution adopted by the Inter-American Bar Association at its Tenth Conference Held in November, 1957, at Buenos Aires, Argentina, together with Papers Submitted to the Association, Appendix D, 63, 68 (Washington, 1958).Google Scholar

¹⁵⁵ Sevette, op. cit. supra note 43, at an. 211.

¹⁵⁶ Ibid., 212.

¹⁵⁷ For a list of some of these treaties, see supranote 151, at 42.

¹⁵⁸ Convention relating to the development of hydraulic power affecting more than one state, Geneva, December 9, 1923. 36 L.N.T.S. 77. For a brief account of the background of this Convention, see Sevette, op. cit. supranote 43, at 152–65.

¹⁵⁹ Sevette, op. cit. supranote 43, at 153–54.

¹⁶⁰ Supra note 9.

¹⁶¹ See supra note 56.

¹⁶² 206 U.S. 46 (1907).

¹⁶³ See supra note 5, articles 2 and 3 of Resolution I.

^l64 Supra note 3.

¹⁶⁵ For a discussion distinguishing present uses from future uses in the context of article 4, see supra 193–94.

¹⁶⁶ See the Indus Basin Development Fund Agreement between Australia, Canada, the Federal Republic of Germany, New Zealand, Pakistan, the United Kingdom, and the United States of America, and the International Bank for Reconstruction and Development, September 19, i960. 12 U.S.T. 19 (1961, part 1); T.I.A.S. 4671. Under article V of the Indus Waters Treaty i960, supra note 34, India agreed to contribute £62,060,000 sterling to the Fund established by this Agreement. For the substantial contributions to the Fund by the parties to this Agreement, see article II.

¹⁶⁷ Professor Andrassy, who prepared the first drafts of the 1961 Salzburg Resolution, was fully aware of this: see 48 Annuaire de l’Institut de Droit International, Tome I, 213, 257 (1959).

¹⁶⁸ Ibid., 264.

¹⁶⁹ Ibid., 257.

¹⁶⁹ To Ibid., 265.

¹⁷¹ Ibid., 268. See questions X and VIII (3) and (4).

¹⁷² Ibid., 193.

¹⁷³ For these views, see ibid., 188, 190–93. For Professor Andrassy’s formal expression of them in articles 2 to 5 of the first draft resolution, see ibid., 211.

¹⁷⁴ For the discussion in plenary sessions, see 49 Annuaire de l’Institut de Droit International, Tome II, 84-192 (1961). Note in particular Professor Andrassy’s unchallenged statement, ibid., 143: “…il existe les droits d’utilisation résultant d’une appropriation antérieure. Ces droits ne sont pas intangibles et peuvent être modifés par la règle de la répartition équitable telle qu’elle est définie à l’article 4.” The Resolution was adopted by a vote of 50 for, none against, and 1 abstention.

¹⁷⁵ Ibid., 382. The text of article 2 is as follows: “Every State has the right to utilize waters which traverse or border its territory, subject to the limits imposed by international law and, in particular, those resulting from the provisions which follow. This right is limited by the right of utilization of other States interested in the same watercourse or hydrographie basin.”

¹⁷⁶ See supranote 167, at 253. Professor Andrassy recognized that a proper rule would take into account that prejudice to the rights of both prior users and subsequent users was often involved in river disputes and that the choice was then between two perfectly valid rights to utilize the waters.

¹⁷⁷ These are the words of Mr. Briggs, but they are echoed in almost identical terms by M. Castren, M. Muûls, Mr. Quincy Wright, and M. Bolla: see ibid., 279–80, 283, 311, 313, 318. The views of Baron von der Heydte were in accord with their spirit: ibid., 299–300.

¹⁷⁸ See the letters of Mme Bastid and M. Feinberg, ibid., 274–75, 294.

¹⁷⁹ See the letters of Mr. Colombos and M. Kraus, ibid., 286, 305.

^l80 See 24 Annuaire de l’Institut de Droit International 187, 358–59.

¹⁸¹ ProfessorSmith’s, H.A. classic work, The Economic Uses of International Rivers (1931),Google Scholar was a milestone in the development of the doctrine of equitable apportionment. In more recent times, Professor G. Sauser-Hall has made a notable contribution to its development: see Sauser-Hall, “L’utilisation industrielle des fleuves internationaux,” 83 Recueil des Cours 471 (1953-II). Professor Andrassy’s important contribution in his report to the Institute of International Law and in other works has already been noted: see supra note 62.

¹⁸² For statements by persons who are not members of the Institute of International Law but who support the payment of compensation for serious loss or damage to existing beneficial uses, see: Sevette, op. cit. supranote 43, at 175, 181; Eagleton, “The Uses of the Waters of International Rivers,” 33 Can. Bar Rev. 1018, 1024, 1033 (1955); Laylin, supranote 154, at 63; Griffin, op. cit. supranote 134; Arechaga, op. cit. supranote 149, at 335–36.

^l83 For a statement on the history of the Helmand River dispute, see “Observations on Comments on the First Report of the Committee by S. M. Sikri, Member of the International Committee and Advocate General of the Punjab (East Punjab),” Appendix A, 19-24, published in Principles of Law Governing the Uses of International Rivers. Resolution Adopted by the International Law Association at its Conference Held in August 1956 at Dubrovnik, Yugoslavia, together with Reports and Commentaries Submitted to the Association.

^l84 Ibid., 20–21.

¹⁸⁵ For this statement, see Laylin, , “Principles of Law Governing the Uses of International Rivers. Contributions from the Indus Basin,” 51 Am. Soc. Int’l L., Proceedings, 20, 22 (1957).Google Scholar

¹⁸⁶ For these principles, see supra note 123, at 97–98.

¹⁸⁷ Ibid., 99.

¹⁸⁸ Supra 216.

¹⁸⁹ 83 British and Foreign State Papers 19 (1891).

¹⁹⁰ Hertslet, II, Map of Africa by Treaty 431 (3rd ed. 1909).Google Scholar

¹⁹¹ 99 British and Foreign State Papers 173 (1906).

¹⁹² See Batstone, , “The Utilisation of the Nile Waters,” 8 Int’l & Comp. L. Q. 523 534 (1959).CrossRefGoogle Scholar

¹⁹³ For much of the background to this account of the contribution of the Nile River to the law on the protection of existing uses, see ibid. and the Report of the Nile Commission, 1925, 130 British and Foreign State Papers 106 (1929).

¹⁹⁴ Report of the Special Mission to Egypt, December 9, 19SO, Egypt No. 1, Cmd. No. 1131, at 32, 33 (1921), referred to by Batstone, supranote 192, at 527.

¹⁹⁵ See I Survey of International Affairs 264 ( 1925 ).

¹⁹⁶ Report of the Nile Commission, 1925, op. cit. supranote 193, at 136.

¹⁹⁷ Ibid., n ι ; see also ibid., 136.

¹⁹⁸ Ibid., 112.

¹⁹⁹ Ibid., 134.

²⁰⁰ Exchange of Notes between the United Kingdom and Egypt in regard to the Use of the Waters of the River Nile for Irrigation Purposes, Cairo, May 7, 1929. 93 L.N.T.S. 44; also supranote 193, at 104–50.

²⁰¹ 156 British and Foreign State Papers 524 (1950).

²⁰² From a statement in a publication of the Sudanese Ministry of Irrigation, Khartoum, of December 1955, entitled The Nile Waters Question, at 13, quoted in Pompe, “The Nile Waters Question,” in Symbolae Verzijl 275, 282 (1958).

²⁰³ 15 Revue Egyptienne de Droit International 321 (1959).

²⁰⁴ See 552 H.C. Deb. (5th ser.) 2411 (1956).

²⁰⁵ Supranote 192, at 543–44.

²⁰⁶ For a discussion suggesting that the 1929 Nile Waters Agreement, supranote 200, had a “territorial character” and was therefore binding on the Sudan, see Vali, Servitudes of International Law 161–64 (2d ed. 1958). However, Mr. Batstone suggests that the Sudan might not have been bound by this Agreement owing to the vital change of circumstances occasioned by her independence: see supranote 192, at 537–40.

²⁰⁷ See Berber, , Rivers in International Law 94–96 (1959)Google Scholar; Simsarian, The Diversion of International Waters 107 (1939); Sikri, “Comments on the First Report of the Committee,” in Principles of Law Governing the Uses of International Rivers. Resolution Adopted by the International Law Association at its Conference Held in August 1956 at Dubrovnik, Yugoslavia, together with Reports and Commentaries Submitted to the Association, 12. Professor H. A. Smith highly praised the Report of the Nile Commission, 1925, and said that the commission’s “method of approaching the problem is in itself a precedent of the greatest value”; but he immediately conceded that it was “clearly right in pointing out that it is impossible to lay down any fixed and general rules to govern the question of water allocation, and that every casie must be considered in the light of its own special circumstances”; he was not, therefore, speaking of a legal precedent: see Smith, op. cit. supra note 181, at 79.

²⁰⁸ For example, see the statement of the Committee on the Uses of the Waters of International Rivers, American Branch, International Law Association, supranote 183, at 8. Mr. Batstone seems hesitant to generalize from the Nile River experience, but he does offer this view on the law: “Existing uses will always be an important factor in the case of irrigation rivers in arid regions and it is submitted that international law, although not accepting the principle of prior appropriation, will respect the claims of existing diversions of water on the ground of a lack of opposing claims during long established use”: see supra note 192, at 544. He therefore indicates that recognition of Egypt’s existing uses by the British government was in accord with international law: see also ibid., 533. It seems that he would give existing uses an absolute protection, not just protection by the payment of compensation. However, as we have noted, he severely qualifies the scope of prior appropriation by holding that the giving of notice of intention to utilize waters in the future is sufficient to prevent further diversions from acquiring the status of acquired rights, and that a dispute about the diversion of waters will also have the same effect: see ibid., 543–45. For another view that Egypt’s existing uses are entitled to full protection under international law apart from treaty provisions, see Badr, , “The Nile Waters Question,” 15 Revue Egyptienne de Droit International 94, 97–100 (1959).Google Scholar

²⁰⁹ References to many of these treaties and interstate compacts are found in Laylin, supranote 154, at 63–68. See also Timm, The International Boundary Commission 221–23 (1941).

²¹⁰ Supranote 66, at 97–98. See also ibid., 181–91. However, there is good authority for saying that in at least one interstate compact in the United States, the La Plata River Compact of 1922 between Colorado and New Mexico, the waters were divided without concern for prior existing rights: see Hinderlider v. La Plata River and Cherry Creek Ditch Company, 304 U.S. 92 (1938).

²¹¹ Lake Lanoux Case (France – Spain), Award of November 16, 1957, 53 Am. J. Int’l L. 156, 170 (1959).

²¹² Ibid., 169.

²¹³ See Schindler, , “The Administration of Justice in the Swiss Federal Court in International Disputes,” 15 Am. J. Int’l L. 149, 169–72 (1921).Google Scholar

²¹⁴ Ibid., 170.

²¹⁵ [1927-1928] Ann. Dig. Pub. Int’l L. Cases 128.

²¹⁶ Ibid., 131.

²¹⁷ This quotation is from Fontes Juris Gentium, Series A, Section II, Tome 2, at 38 (i960). For the German text of the judgment in this case, see ibid., 173. For the text of which the quotation is a paraphrase, see ibid., 180.

^2l8 See supra note a 15, at 133–33.

²¹⁹ 359 U.S. 419 (1922).

²²⁰ Ibid., 470.

²²¹ For criticism of this decision, see Niles, , “Legal Background of the Colorado River Controversy,” 1 Rocky Mt. L. Rev. 73, 86–87, 100–101 (1929).Google Scholar In this article, the author traced the development of the doctrine of prior appropriation in the United States and considered its application in interstate cases. He concluded that the doctrine was not satisfactory and favoured equitable apportionment. He stressed the importance of using river water in its basin upstream “as young as possible,” for it does not leave the basin but returns and benefits downstream areas, as the experience of Kansas with the Arkansas River showed: see ibid., 96–101.

²²² 325 U.S. 589 (1945). For a discussion of this case and Wyoming v. Colorado, supra note 219, see Wehrli, , “Decrees in Interstate Water Suits,” I Wyo. L.J. 13 (1946).Google Scholar

²²³ 325 U.S. 589, 608-10 (1945). The three dissenting judges differed from the majority on this point; they felt that Nebraska had not conclusively proved the extent of her injuries and refused to join in the decree on that ground.

²²⁴ See the Report of Michael J. Doherty, Special Master, in Nebraska v. Wyoming, 325 U.S. 589 (1945), at 112–13. Mr. Doherty had written that “a rule that would seem elementary in equitable distribution … is that present rightful uses should be preferred to prospective uses under possible future development”: see ibid., 109. In view of his subsequent statements at 112–13, he clearly meant no more than that present uses should not be restrained now just because of some speculative future development, which is an altogether different matter from that under consideration.

²²⁵ U.S. 589, 618 (1945).

²²⁶ Ibid., 627.

²²⁷ 304 U.S. 92 (1938).

²²⁸ Ibid., 102. This statement was approved in Nebraska v. Wyoming, supranote 226.

²²⁹ See Goldie, , “Effect of Existing Uses on the Equitable Apportionment of International Rivers, A Canadian View,” 1 U.B.C. L. Rev. 399, 403–04 (1960).Google Scholar

²³⁰ For statements indicating the court’s preference for settlement of interstate water disputes by agreement of the parties, see Colorado v. Kansas, 320 U.S. 383, 392 (1943) ; Nebraska v. Wyoming, 325 U.S. 589, 616–17 (1945). For a similar view, see the remarks of the court in Wurttemberg and Prussia v. Baden, supra note 215, at 132–33. The recent decision of the Supreme Court of the United States in Arizona v. California, 373 U.S. 546 (1963), attributing to Congress the intention to provide a complete statutory apportionment of the Colorado River waters by the Boulder Canyon Project Act of 1928 and thus avoiding a judicial apportionment of those waters, may indicate the court’s preference for a legislative solution of these difficult problems when the parties cannot reach agreement.

²³¹ This was suggested in Wurttemberg and Prussia v. Baden, supra note 215, at 130–31. The court, having held that international law applied to an interstate water problem in Germany, said: “The community embracing the German States is closer than the international community of nations, and the duty of reciprocal consideration of interests is, therefore, more intensive than in the relations of other States.”

²³² 7 Am. J. Int’l L. 653 (1913); Hackworth, I, Digest of International Law 594–95 (1940).Google Scholar

²³³ [1938-1940] Ann. Dig. and Rep. Pub. Int’l L. Cases 120.

²³⁴ 185 U.S. 135, ’46 (1902).

²³⁵ See 48 Annuaire de l’Institut de Droit International, Tome I, 183–84 (1959). The Oscar Chinn Case, P.C.I.J., Ser. A/B, No. 63 (1934), is another example.

²³⁶ Andrassy, , “L’utilisation des eaux des bassins fluviaux internationaux,” 16 Revue Egyptienne de Droit International 23, 34 (1960).Google Scholar He gives another example of an act which causes injury and yet is lawful: see ibid., 35–36.

²³⁷ [1949] I.C.J. Rep. 22 (italics added by the author).

²³⁸ Supra note 95.

²³⁹ See Fitzmaurice, , “The Law and Procedure of the International Court of Justice: General Principles and Substantive Law,” 87 Brit. Yb. Int’l L. 1, 12 (1950)Google Scholar; Sauser-Hall, , “L’utilisation industrielle des fleuves internationaux,” 83 Recueil des Cours, 471, 532 (1953–II).Google Scholar

²⁴⁰ Oppenheim, I, International Law 345–47 (8th ed. Lauterpacht 1955).Google Scholar See also Lauterpacht, , The Function of Law in the International Community 291–92 (1933).Google Scholar But cp. Schwarzenberger, I, A Manual of International Law 99–100 (4th ed. 1960).Google Scholar

²⁴¹ I Oppenheim, op. cit. supranote 240, at 347. There are no criteria for distinguishing between a legitimate and an abusive exercise of rights: Judge Alvarez a strong supporter of the doctrine, could only say in the Corfu Channel case that, in order to determine whether there is an abuse of rights “the facts must be evaluated in any given case”: see supra note 237, at 48.

²⁴² See Lauterpacht, op. cit. supranote 240, at 292–95.

²⁴³ Supra note 64, at 283.

²⁴⁴ 206 U.S. 46, 109 (1907).

²⁴⁵ I Hyde, op. cit. supranote 35, at 566.

²⁴⁶ See the Oscar Chinn Case, supra note 235, for an illustration of the difficulty in determining what are vested rights.

²⁴⁷ See supra note 213, at 170.

²⁴⁸ Supra note 244, at 99.

²⁴⁹ Smith, op. cit. supranote 181, at 40.

²⁵⁰ For examples, see O’Connell, , The Law of State Succession 49, 51–55 (1956)Google Scholar; Vali, , Servitudes of International Law 147–52, 158–64 (2d ed. 1958)Google Scholar; Reid, , International Servitudes in Law and Practice 48–50 (1932).Google Scholar For an illustration of a servitude for the benefit of a canal, see The Tacna-Arica Arbitration, 23 Am. J. Int’l L. (Supp.) 183 (1929).

²⁵¹ See supra note 150. For the debate on the report, see ibid., 816–41.

²⁵² See supra note 6.

²⁵³ For a similar approach in a “riparian rights” system of domestic law, see supra note 124, at 79–80.

²⁵⁴ The International River Basin 23 (ed. Chapman 1963).

²⁵⁵ See ibid., 21–22.

²⁵⁶ For treaties protecting the future right of a state to use water by allowing its co-riparian state the right to the beneficial use of the waters in excess of their apportionment only until they are needed by the state entitled to them, see Article 3, paragraph 2, of the Nile Waters Treaty of 1959, supra note 203; Article 2 of the Agreement between the Union of South Africa and Portugal regarding the development of the Kunene River, July i, 1926, 70 L.N.T.S. 315; Articles 9(e) and 10(b) of the Treaty between the United States and Mexico relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, November 14, 1944, 59 Stat. 1219; T.S. No. 994; 3 U.N.T.S. 313. For a case allowing diversion but specifying that it “shall not constitute a prior appropriation and shall not give … any superiority of right …,” see New Jersey v. New York, 283 U.S. 336, 347 (1931). In the absence of these express provisions res-stricting one co-riparian from acquiring future rights in water merely by the act of utilization, the other co-riparian will find itself in diplomatic, if not legal, difficulty when it wishes to increase its own utilizations: see the statement of the Hon. Dean Acheson in Hearings Before the Senate Committee on Foreign Relations on Treaty with Mexico Relating to the Utilization of the Waters of Certain Rivers, supra note 66, at 1761—“Today some 8,000,000 acre-feet a year of this water are wasting through Mexican territory. There is nothing to stop Mexico’s using more and more of this water as time goes on. And regardless of what the legal niceties may be, let no one be deceived that the longer this building up of use continues, the more difficult it will be to negotiate a settlement on anything like as favorable a basis as we have here.” It is undoubtedly true that utilizations that actually exist are strongly entrenched. The fears that increasing utilizations give rise to and the aggravation of those fears by a doctrine of prior appropriation are well put by Mr. Justice Black in the recent decision of the Supreme Court in Arizona v. California, 373 U.S. 546, 555, 558 (1963): “The prospect that the United States would undertake to build as a national project the necessary works … was … a welcome one. … But it brought to life strong fears in the northern basin States that additional waters made available. … might be gobbled up in perpetuity by faster growing lower basin areas, particularly California, before the upper States could appropriate what they believed to be their fair share. These fears were not without foundation, since the law of prior appropriation prevailed in most of the Western States … fears that the law of prior appropriation would be not a protection but a menace because California could use that law to get for herself the lion’s share of the waters. …”

²⁵⁷ A downstream state may injure an existing use upstream by backing up the waters of the river; however, this act would probably cause flooding in the upstream state and would on that ground alone be unlawful. A downstream state, of course, also has the capacity to injure the navigational and fishery uses of the river by upstream states.

²⁵⁸ The Permanent Court of International Justice lent its support to the notion of equality of rights for upper and lower riparian states by the following statement in the case of The Territorial Jurisdiction of the International Commission of the River Oder, P.C.I.J., Ser. A, No. 23, at 26–27 (1929) : “It may well be admitted, as the Polish Government contend, that the desire to provide the upstream States with the possibility of free access to the sea played a considerable part in the formation of the principle of freedom of navigation.… But when consideration is given to the manner in which States have regarded the concrete situations arising out of the fact that a single waterway traverses or separates the territory of more than one State, and the possibility of fulfilling the requirements of justice and the considerations of utility …, it is at once seen that a solution … has been sought not in the idea of a right of passage in favour of upstream States, but in that of a community of interest of riparian States … the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the uses of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others.”

²⁵⁹ In his final report, Professor Andrassy indicated that the Resolution was intended to treat both upstream and downstream states equally in this respect: see 48 Annuaire de l’Institut de Droit International, Tome I, 319, 33° (r959)j Ior his statement which is as follows: “…Particle assure le progrès en permettant à l’Etat qui est plus avancé dans le programme de ses trauvaux, et qui en éprouve plus tôt le besoin, de procéder à des aménagements à ses propres frais, tout en ayant le devoir de partager les bénéfices avec les autres intéressés qui s’associent plus tard à lui.” However, he gives as illustrations the provisions of the 1959 Nile Waters Treaty and of the 1926 Treaty relating to the Kunene River (see supra note 356) ; but, since they both deal with the right of the upstream state to share in the benefits of a work undertaken by the downstream state in the territory of the upstream state, they are not apt precedents for the problem now under study.

²⁶⁰ In the Hinderlider case, 304 U.S. 93 (1938), the court allowed interference with a prior existing use upstream for the benefit of the downstream state, but this was the result of a division of the waters by a compact between the two states. In Wisconsin v. Illinois, 278 U.S. 367 (1929), the court did restrain a long-established diversion of water from Lake Michigan at Chicago, but it did so because by act of Congress there was no right to interfere with navigation on the Great Lakes and, in authorizing the diversion, the Secretary of War had exceeded his statutory powers.

²⁶¹ 297 U.S. 517 (1935).

²⁶² Berber, op. cit. supra note 70, at 249.

²⁶³ See supra 229.

²⁶⁴ See supra 258.