1 Scott, , “Kansas v. Colorado Eevisited,” 52 A.J.I.L. 432, 454 (1958).Google Scholar References in the text to adjudication or arbitration will include every kind of impartial third-party determination.

2 ‘ ‘ The Problem of the Indus and its Tributaries—An Alternative View,'’ 14 The World Today 266, 275 (1958). A large number of states have entered into agreements to arbitrate or adjudicate river disputes that defy solution by agreement. The authors of these treaties do not share the view quoted in the text. In fairness to the authors of the articles cited in this note and in note 1, above, it must be acknowledged that their articles may have been written before they had an opportunity to evaluate the results of the Geneva Conference on the Law of the Sea (convened on Feb. 24, 1958, and adjourned on April 28, 1958). While this Conference did not deal with the law governing international rivers, the notable support given by it to the settlement by adjudication of disputes concerning the uses of other waters of common interest might have fundamentally affected the views of these authors. See Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes, 52 A.J.I.L. 862 (1958), and provisions for adjudication of disputes in the Convention on Fishing and Conservation of the Living Resources of the High Seas, ibid, at 851, 854.

3 See Principle VI of Resolution adopted by the International Law Association (I.L.A.) at its Forty-Seventh Conference held in 1956 at Dubrovnik, Yugoslavia, quoted below, p. 76, and Principle 2 of Resolution adopted by the Inter-American Bar Association at its Tenth Conference held in 1957 at Buenos Aires, Argentina, quoted below, p. 73. See also note 21 below. In a Resolution on the Uses of the Waters of International Rivers, the 48th Conference of the International Law Association held at New York in September, 1958, unanimously recommended that in case of a failure of consultations to produce agreement within a reasonable time, the riparian states should seek a solution “ i n accordance with the principles and procedures (other than consultation) set out in the Charter of the United Nations and the procedures envisaged in Article 33 thereof.” Art. 33 of the Charter includes “arbitration” and “judicial settlement.“ On May 17, 1958, the Committee on Uses of International Waters of the American Bar Association (A.B.A.) approved a resolution which upholds the duty of riparian states to refrain from unilateral action in case of disagreement with co-riparians, and supports the U. S. Department of State (see note 20 below), the Inter-American Bar Association (see note 21 below) and the Committee on the Uses of Waters of International Rivers of the I.L.A. (see note 21 below) in their views that adjudication is an appropriate means of resolving international river disputes. See comments on above resolution of A.B.A. Committee in Senate Committee on Public Works, Lake Michigan Water Diversion, Sen. Rep. No. 2482, 85th Cong., 2d Sess., pp. 15, 24 (1958).

4 The Helmand and the Indus river disputes. The writers are in a law firm that is currently advising Iran and Pakistan.

5 See note 41 below.

6 See notes 36 and 41 below.

7 “Pakistan includes some of the most productive food-growing lands in the world in Western Punjab (the Kipling country) and the Sind. But without water for irrigation this would be desert, 20,000,000 acres would dry up in a week, tens of millions would starve. No army, with bombs and shellflre, could devastate a land as thoroughly as Pakistan could be devastated by the simple expedient of India's permanently shutting off the sources of water that keep the fields and the people of Pakistan alive. India has never threatened such a drastic step, and indeed denies any such intention—but the power is there nonetheless.” (Lilienthal, “Another Korea in the Making!” Collier's, Aug. 4, 1951, p. 58, col. 1.) India has since threatened to cut off Pakistan's supplies in 1962. Speech of Shri S. K. Patil, Minister for Irrigation and Power, in the Lok Sabha on March 26, 1958. See press release of Information Service of India, Embassy of India, Washington, D.C., M.E. 27/58, June 13, 1958, for comments on Mr. Patil's statements. There are, however, signs of better second thoughts. According to the July 15, 1958, issue of India News, a periodical of the Embassy of India in the United States, Mr. Patil has in a later speech (June 30, 1958) indicated that “India will do nothing to affect prejudicially riparian rights of Pakistan.“

8 “International law recognizes the right on the part of every riparian state to enjoy as a participant of a kind of partnership created by the river, all the advantages deriving from it for the purpose of securing the welfare and the economic and civil progress of the nation … “ Soci6t6 Energie Electrique du Littoral Mediterranean v. Compagnia Imprese Elettriche Liguri (Decision of Italian Court of Cassation, Feb. 13, 1939). Annual Digest of Public International Law Cases (Lauterpacht) 121, 122, No. 47 (1938-40).

9 Report of the Indus [Eau] Commission and Printed Proceedings 10 (Simla, 1941; reprinted in Lahore, 1950).

10 The United States Supreme Court has often indicated that resolution by agreement is generally the preferable method of settling water disputes. In Hinderlider v. LaPlata Company, 301 V. S. 92, 105 (1937), Justice Brandeis said: ” … The difficulties incident to litigation have led States to resort, with frequency, to adjustment of their controversies by compact, even where the matter in dispute was a relatively simple one of a boundary. In two such cases this Court suggested ‘that the parties endeavor with the consent of Congress to adjust their boundaries.’ In New York v. New Jersey (256 IT. S. 296, 313), which involved a more intricate problem of rights in interstate waters, the recommendation that treaty-making be resorted to was more specific.“ In New York v. New Jersey, 256 TJ. S. 296, 313 (1921), the Court said: “We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative study and by conference and by mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.“

11 The Commission was appointed in 1941, pursuant to the Government of India Act, 1935, to report upon a complaint by the Province of Sind concerning injuries to it threatened by proposals of the Punjab, an upstream riparian, to impound and divert waters of tributaries of the Indus Eiver. The Chairman of the Commission was Sir Benegal N. Eau, then a judge of the Calcutta High Court and later a member of the International Court of Justice. At the outset, the Commission proposed for comment by the parties certain general principles of law, and these were accepted unanimously by the primary disputants and the five other States and Provinces which appeared in the proceedings. These principles are stated in the Eeport, op. cit. note 9 above, at 10-11 as follows: “Subject to correction in the light of what you may have to say, the following principles seem to emerge from the authorities: “(1) The most satisfactory settlement of disputes of this kind is by agreement, the parties adopting the same technical solution of each problem, as if they were a single community undivided by political or administrative frontiers. I (Madrid Rules of 1911 and Geneva Convention, 1923, Articles 4 and 5.) ” (2) If once there is such an agreement, that in itself furnishes the ‘law’ governing the rights of the several parties until a new agreement is concluded. (Judgment of the Permanent Court of International Justice, 1937, in the Meuse Dispute between Holland and Belgium.) “(3) If there, is no such agreement, the rights of the several Provinces and States must be determined by applying the rule of ‘equitable apportionment', each unit getting a fair share of the water of the common river. (American decisions.) ” (4) In the general interests of the entire community inhabiting dry, arid territories, priority may usually have to be given to an earlier irrigation project over a later one: 'priority of appropriation gives superiority of right'. (Wyoming v. Colorado, 259 U. S. 419, 459, 470.) “ (5) For purposes of priority the date of a project is not the date when survey is first commenced, but the date when the project reaches finality and there is a fixed and definite purpose to take it up and carry it through. (Wyoming v. Colorado, 259 U. S. 419, 494, 495; Connecticut v. Massachusetts, 282 IT. S. 660, 667, 673.) “(6) As between projects of different kinds for the use of water, a suitable order of precedence might be (i) use for domestic and sanitary purposes; (ii) use for navigation, and (iii) use for power and irrigation. (Journal of the Society of Comparative Legislation, New Series, Volume XVI, No. 35, pages 6, 7.) “ As to the question of priorities the Commission continued: “We may observe in passing that the ranking of different uses in a particular order of precedence depends on the circumstances of the river concerned. And even as regards the same river, different authorities may take different views.” (Hid. at 11.)

12 The parties agreed on the distribution of the waters and, in accordance with the report of the Commission, that one party was bound to reimburse the other for works to be built by the latter for the benefit of the former. The amount to be paid was not agreed upon and the question would have been referred to His Majesty in Council for a final decision but for the interposition of Partition and the establishment of India and Pakistan as independent countries.

13 The Indus Commission played a r61e somewhat between conciliation and adjudication or arbitration. It won agreement to the principles, then applied them in the form of recommendations to the central authority, which had the power to, and in all likelihood would, implement them in its orders.

14 Scott, note 1 above; ‘’ The Problem of the Indus and its Tributaries—An Alternative View,” note 2 above.

15 Affaire du Lac Lanoux, Sentence du Tribunal Arbitral, Paris, 1957 (hereinafter cited as Sentence). The Award appears also in 29 Revue Gén. de Droit Int. Pub. 79-119 (1958) ; and is digested below, p. 156.

16 Boundary Treaty of Bayonne of May 26, 1866, and the “Acte Additionnel” of the same date. The texts of these treaties can he found in 56 Brit, and For. State Papers 212 et seq.

17 Sentence at 50.

18 “ The Problem of the Indus and its Tributaries—An Alternative View,'’ note 2 above, at 274; see also note 36 below.

19 Sentence at 50.

20 Memorandum of the U. S. Department of State, 85th Cong., 2d Sess., Sen. Doc. No. 118, pp. 90-91 (1958), prepared by William L. Griffin, entitled “Legal Aspects of the Use of Systems of International Waters with Special Referenee to the Columbia- Kootenay River System under the Treaty of 1909 and under Customary International Law” (hereinafter cited as “Dept. of State Memorandum“).

21 Principle III in 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, p. xi (Washington, D. C, 1958, Lib. Cong. Cat. Card No. 58-12111; hereafter cited as “Principles … American Committee“). Of. Principle 3 of Resolution of Inter-American Bar Association, quoted below, pp. 73-74. 1959]

22 “ It is important, too, to bear in mind that the mere fact that a court is open for dealing with disputes and that the parties may be compelled to appear before it is often enough to spur parties into settling their differences amicably out of court. This might well be the case in some international disputes as well as in cases of a private nature.” “International Order Under Law,” address by William P. Rogers, Attorney General of the United States, prepared for delivery at the Forty-Eighth Biennial Conference of the International Law Association, New York University Law Center, New York, N. Y., Sept. 2, 1958; Mimeographed Release of the Department of Justice, p. 9 (1958); 39 Dept. of State Bulletin 536 at 539 (1958).

23 According to the French Ménoire, Lake Lanoux, one of the largest Pyrenean lakes, lies at an altitude of approximately 2,174 meters, is about three kilometers in length and 500 meters in width, and has a surface of 86 hectares. Its depth is at some points as great as 53 meters. The volume of water it collects naturally is about 17 million cubic meters. The planned construction of a barrage of the height of 45 meters would turn Lake Lanoux into a reservoir capable of storing approximately 70 million cubic meters of water. The water would be channeled through a tunnel toward the Atlantic watershed and directed to a power station where it would be run through a turbine after dropping straight from a height of 780 meters. This project would enable Prance to produce enough electricity, even during the peak hours, to serve a city of 326,000 inhabitants throughout the year. To return to the Carol River the waters diverted from it, the French project contemplates the construction of a tunnel, 5 kilometers in length, which would take water from the Ariége to the Carol at a rate of approximately 5 cubic meters per second and at a point higher than where the head works of a canal which serves Spanish users are located. The head works would lie in French territory. The planned diversion amounts to 25% of the entire flow of the Carol, the waters of which are used in Spain by 18,000 farmers. (Affaire du Lac Lanoux, Mémoire du Gouvernement de la République Francaise 3-13 [Paris, 1957].)

24 After years of intermittent negotiations, which began in 1917, and after delays owing to the second World War, France and Spain reached a standstill agreement in 1949 during a meeting of the “International Commission of the Pyrenees.” It was decided to establish a “Mixed Commission of Engineers” the task of which was to study the possibility of solutions open to the parties. France and Spain agreed, as part of the proceedings of the International Commission of the Pyrenees, not to make changes in the regime of their common waters until further agreement. The duration of this agreement became a matter of dispute in the arbitral proceedings. During the work of the Mixed Commission a first project was examined which proposed the restitution of only 1200 liters per second, from May 1 to Sept. 30, and 600 liters per second from Oct. 1 to April 30, and the indemnification of users whose needs might not be met by these allocations. In 1954 France offered to make full restitution. In November, 1955, France offered further to guarantee a delivery of an annual volume of 20 million cubic meters of water and to permit the Mixed Commission to check on all construction phases, the regularity of restitutions, and to allow a representative of Spain with consular status to have access to all the works at any time in order to assure himself that the French pledge was being properly administered and carried out. In February, 1956, France conceded further the possibility of regulating the return of the waters in such a way as to increase their availability to Spain in periods of greater need and to establish a reserve for the benefit of Spain during dry years. Agreement having proved impossible, the two countries decided to submit the dispute to arbitration in May, 1956; a compromit was signed in November, 1956. In September, 1956, the French Ambassador at Madrid announced that France would undertake to maintain the status quo until a decision was reached by the Arbitral Tribunal.

25 Statement by Benedict M. English, Assistant to the Legal Adviser of the Department of State, in Hearings before the Senate Committee on Foreign Relations on Treaty with Mexico Relating to the Utilization of Waters of Certain Rivers, 79th Cong., 1st Sess., Pt. 5, pp. 1738-1752 (1945).

27 Mr. B. M. English, the attorney of the State Department, summed up his testimony as follows: “In conclusion, we respectfully submit the following: “First, the contention that under the Senate reservation to the 1929 inter-American arbitration treaty the United States can properly refuse to arbitrate any matter which it does not desire to arbitrate, is unsound and unsupportable. “Second, the contention that under that treaty the United States can properly refuse to arbitrate a demand by Mexico for additional waters of the Colorado is, to say the least, extremely doubtful, particularly when the Harmon opinion is viewed in the light of the following: “(a) The practice of states as evidenced by treaties between various countries, including the United States, providing for the equitable apportionment of waters of international rivers. ” (b) The decisions of domestic courts giving effect to the doctrine of equitable apportionment, and rejecting, as between the States, the Harmon doctrine. “(c) The writing of authorities on international law in opposition to the Harmon doctrine. “(d) The trail smelter arbitration, to which we referred.” (Hearings, note 25 above, at 1751.)

27 Hearings, note 25 above, at 1754.

28 Ibid, at 1754-1755.

29 Treaty, on the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, 59 Stat. 1219 (1945).

30 American Compacts, Treaties, and Adjudications are collected in Documents on the Use and Control of the Waters of Interstate and International Streams (U. S. Department of the Interior, Washington, 1956). Among foreign judicial decisions dealing with the uses of waters of interstate or international rivers are the following: Wurttemberg and Preussen v. Baden, 116 Entscheidungen des Eeichsgerichts in Zivilsachen, Supplement, p. 18 (Deutscher Staatsgerichtshof, 1927), and Société Energie Electrique du Littoral Mediterranean v. Compagnia Imprese Elettriche Liguri, note 8 above.

31 Sentence at 40.

32 A bibliography on the legal aspects of the non-navigational uses of international rivers appears in Principles … American Committee 109-129, op. cit. note 21 above. The comprehensive works on the law governing the uses of international rivers include: Smith, The Economic Uses of International Rivers (1931); Andrassy, “Les relations Internationales de voisinage,” in 79 Hague Academy Beeueil des Cours 77-182 (1951, I I ) ; Sevette, Legal Aspects of Hydro-Electric Development of Rivers and Lakes of Common Interests (TJ.N. Doc. E/ECE/136, Geneva, 1952; this work will be cited as ECE Report); Berber, Die Rechtsquellen des Internationalen Wassernutzungsrechts (Munich, 1955); Hartig, Internationale Wasserwirtschaft und Internationales Eecht (Vienna, 1955); Principles of Law Governing the Uses of International Eivers—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 (Washington, D.C., 1957, Lib. Cong. Cat. Card No. 57-10830; here after cited as “Principles … Dubrovnik“); Andrassy, Utilisation des eaux interna tionales non-maritimes (en dehors de la navigation) (Institut de Droit International, Geneva, 1957); 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 (Washington, D.C., 1958, Lib. Cong. Cat. Card No. 58-12112; hereafter cited as “Principles … Buenos Aires“); Dept. of State Memorandum, op. cit. note 20 above.

33 A summary of the work of international bodies in the field of international river law, together with the texts of declarations, resolutions and conventions appears in Appendix A of Principles … American Committee (op. cit. note 21 above) at 53 et seq.

34 France and Spain devoted substantial parts of their briefs to an analysis of their rights as co-riparians apart from the obligations arising from treaties. Their adherence to a substantive rule of reason stands out despite their basic divergence over the necessity of prior agreement under the circumstances of the case. The French Memoire, in a chapter entitled “Le Droit des Gens,” at pp. 58-66, begins its analysis of customary international law by stating that the proposed diversion is in conformity with the principles of international law apart from treaty, and remarks that a consideration of international custom is not superfluous for the purposes of the case. In order to identify the principles of existing customary international river law, the Memoire considers, article by article, the pertinent provisions of the Declaration of Madrid of 1911 of the Institut de Droit International (see text in 24 Annuaire de 1'Institut de Droit International 365 (1911) and in Principles … American Committee, op. cit. note 21 above, at 54), and comments after each principle that the French project conforms nith it. The part of the Declaration requiring prior agreement before alterations are made in the regime of international rivers is claimed by France to apply only to cases in which the quantity or quality of water at the border is changed. Since the French project entails no such change, it is argued, France is respecting customary international river law. The pertinent provisions of the Geneva Convention of 1923 (see text in 36 L.N.T.S. 75 and in Principles … American Committee, cited note 21 above, at 56) are also analyzed one by one in the French Memoire, and it is argued that the proposed diversion does not violate them. Concerning the validity of the above declaration and convention as indicative of the present state of customary international river law, the Memoire states: “They are the results of efforts which have not always been crowned with success and followed by action. But their importance is no less great, thanks to the competence imd authority of their authors and to the very extensive scope, one might say universal M'ope, of the rules which they have attempted to establish.” (Affaire du Lac Lanoux, Memoire du Gouvernement de la Bepublique Franchise 64-65, Paris, 1957; authors' translation.) The French Memoire summarizes the principles to be derived from the authorities »p follows: ’ ‘ As far as this litigation is concerned, the following [rules] may be particularly retained: Sovereignty, on its territory, of a State desirous of carrying out hydroelectric developments; correlative duty, for it, not to injure gravely the interests of a neighboring State; convenience of informing a neighboring State of contemplated projects, of discussing them with it, if it need be; opportunity of searching for an agreement including, if appropriate, guarantees of execution; but no duty, if the interests of the latter State do not suffer serious prejudices, to obtain its consent before undertaking the works.” (Ibid, at 65; authors’ translation.) The Spanish Memoire, at pp. 61-78, stated that the examination of treaties regulating the rights of co-riparians is a proper method of inquiry into the conception of general international river law held by states in general, since in many cases treaties contain applications of general principles to specific circumstances. A number of bilateral and multilateral treaties are then analyzed in the Memoire to show that coriparians have often undertaken to refrain from making changes in the existing regime of international rivers without first securing the consent of interested co-riparians. The decisions of the German, Swiss, and American federal courts are reviewed in the Memoire to indicate that the principle that no substantial change can be brought .'I.out by one riparian without the consent of co-riparians is supported in the available opinions of courts having to decide questions analogous to those arising from the uses of international rivers. More than 30 publicists are listed in the Memoire as supporting the view that a prior agreement is mandatory before a riparian may effect a substantial change in the regime of the waters of international rivers and lakes. It is recognized by the Spanish Government that different authors justify their views on the basis of different theories, but the conclusion is reached that they all agree on the basic proposition that international law, apart from treaty, sanctions not only the equality of rights of coriparians, but also the necessity of prior agreement among co-riparians, whenever a substantial alteration of the regime of the waters is contemplated.

35 Art. 8 of the Acte Additionnel of 1866 reads: “All stagnant and flowing waters, whether they are in the private or public domain, are subject to the sovereignty of tho State in which they are located, and therefore to that State's legislation, except for the modifications agreed upon between the two Governments. Flowing waters change jurisdiction at the moment when they pass from one country to the other, and when the watercourses constitute a boundary, each State exercises its jurisdiction up to the middle of the flow.” (Authors’ translation.)

36 Sentence at 33. A dwindling minority of writers has maintained that international law does not impose any obligations on riparian states desirous of using the waters of international rivers within their jurisdictions. The ECE Report, in its review of some thirty writers (at 51-68), finds that not more than three or four still take this position. A related position is taken by Berber, op. cit. note 32 above, at 104, who nevertheless brands the doctrine of absolute territorial sovereignty as based upon an individualistic, anarchical conception of international law. For the majority view that co-riparians are under mutual obligations not to cause serious injuries to each other's interests and are entitled to share in the common waters on a reasonable basis, see the following: Brierly, The Law of Nations 204-205 (5th ed., 1955); 1 Oppenheim, International Law 346-347 (8th ed., Lauterpacht, 1955) ; Sevette, op. cit. note 32 above, at 209 et seq.; Sauser-Hall, “L'utilisation industrielle des fleuves internationaux,” in 83 Hague Academy Eecueil des Cours 465-586 (1953, I I ) ; Eagleton, “The Use of the Waters of International Bivers,” 33 Canadian Bar Beview 1021 (1955); Andrassy, op. cit. note 32 above; Dept. of State Memorandum, note 20 above; Principles … American Committee, op. cit. note 21 above; Principles … Buenos Aires, op. cit. note 32 above; Laylin, “The Uses of the Waters of International Bivers,” in Principles … Dubrovnik, op. cit. note 32 above, at 1; 48th Conference of the International Law Association (New York, 1958), Besolution on the Uses of the Waters of International Bivers. The Besolution adopted by reference the Beport of the Committee on the Uses of the Waters of International Bivers, quoted in part in note 41 below; see also p. 74 below. Leaning toward the opposite extreme that a riparian may do nothing to affect a co-riparian without prior agreement are: Cardona, “El régimen juridico de los rios internacionales,” 56 Bevista de Derecho Internacional 24 (La Habana, 1949); De Yanguas Messia, “El aprovechamiento hidroeléictrico de los rios internacionales en las zonas fronterizas españolas,” 1 Bevista de la Facultad de Derecho de la Universidad de Madrid 9 (1957); Theiler, “Los rios, lagos y canales internacionales,” in Principles … Buenos Aires, op. cit. note 32 above.

37 Sentence at 33. Following this reasoning to its logical conclusion, the Tribunal declared that it would adopt the following rules of interpretation: “Provisions of conventional law which are clear need no interpretation; … when interpretation is called for, it must be arrived at according to international law; international law does not sanction any absolute or rigid method of interpretation; it is thus permitted to take into account the spirit which dictated the Pyrenean Treaties as well as the rules of customary international law.” (Sentence at 34-35; authors' translation.)

38 Sentence at 46-47.

39 Ibid, at 47.

40 Other phrases for this concept are found in the authorities which speak in terms of a principle of “equitable apportionment” (American Decisions, note 30 above; Dept. of State Eelease, note 41 below), the entitlement of co-riparians to a “reasonable and equitable share” (New York Eesolution of the International Law Association, Sept., 1958, note 41, below), or to a sharing of the waters on a “ j u s t and reasonable basis.” (Dept. of State Memorandum, op. cit. note 20 above.) See authorities cited in notes 32, 36, above, and in note 41 below.

41 The Tribunal's conclusions as to the present state of international law as reflected in “international practice” and in the “conviction” of states are a far cry from an early view of the scope of sovereign rights expressed by U. S. Attorney General Harmon in 1895. During a dispute with Mexico over the use of the waters of the Upper Rio Grande in places where both banks are in the United States, the Attorney General rendered an opinion to the effect that “ t h e rules, principles and precedents of international law impose no liability or obligation upon the United States.” (21 Ops. Att'y. Gen. 267 [1895].) It is doubtful whether such an opinion ever truly reflected existing international law. See especially Appendices B and C in Principles … American Committee, op. cit. note 21 above at 74, 84, for an analysis of the history and vicissitudes of the Harmon opinion at home and abroad. A recent statement by a witness of the Department of State testifying before the Senate Committee on Interior and Insular Affairs rejected utterly the Harmon doctrine. In the course of hearings on the question of the proposed diversions by Canada of waters from the Upper Columbia Biver, Deputy Assistant Secretary of State Frederick W. Jandrey, Jr., had this to say: “Among other things our memorandum deals with this view and points out that international law, as it has developed in this field in recent years, has solidified the principle of the equitable apportionment of waters which cross international boundaries. The fundamental doctrine concerned is, of course, that of not using one's own property rights to injure the property rights of others.” (Statement of Frederick W. Jandrey, Jr., Deputy Assistant Secretary of State for European Affairs, on Upper Columbia River Development, April 21, 1958. Mimeographed Eelease of Dept. of State, p. 3 [1958].) The ofiSeial endorsement of the substantive rule of reason on the part of the United States is embodied in a set of principles appearing in the memorandum referred to by Mr. Jandrey. See note 20 above. Besides the evidence supplied by international practice, the statements and resolutions adopted by learned societies corroborate the rule of reason and to a remarkable extent parallel the ideas expressed by the Tribunal. Almost fifty years ago, the Institut de Droit International at its Madrid Conference in 1911, asserted that the dependence of riparian states upon each other “excludes the idea of complete autonomy for either along that portion of the natural course coming under its sovereignty.” (See 24 Annuaire de 1'Institut de Droit International 170 ei seq. [1911]; Declaration of Madrid, ibid. 365.) Several reports presented at the Seventh Inter-American Conference held at Montevideo in 1933 show an unmistakable concurrence in the principle of equality of rights of co-riparians. The principle was stated in what became known as the Declaration of Montevideo. See Text of Declaration in Final Act of the Seventh International Conference of American States, International Conferences of American States 88-89 (First Supp., 1933-1940) (Carnegie Endowment for International Peace, Washington, 1940). Recently the Inter-American Bar Association at its Xth Conference in Buenos Aires in November, 1957, unanimously adopted a resolution in which the principle of equality of rights of co-riparians is stated to be existing international law. See p. 73 below. Support to the substantive rule of reason was given also by the International Law Association (I.L.A.) in 1956, in a resolution adopted as a basis for further study. See p. 74 below. A recent study conducted by a panel of experts for the United Nations, on integrated river basin development, recommends that states adopt the I.L.A. principles as a sound approach in the negotiation and settlement of international river disputes. (Integrated River Basin Development 33 (U.N. Doc. E/3066), New York, 1958.) The Forty-Eighth Conference of the International Law Association, meeting in New York Sept. 1-7, 1958, adopted unanimously a minimum statement of “Agreed Principles of International Law,” in which it is stated that “ … each co-riparian state is en titled to a reasonable and equitable share in the beneficial uses of the waters of the drainage basin.” See note 36 above.

42 Immediately after outlining in broad terms the present status of international law as derived from “international practice” and the “conviction” of states, the Tribunal proposed to apply the principles specifically by saying: “This suggestion will be kept in mind later in dealing with the question of establishing which obligations rest on France and Spain concerning contacts and negotiations prior to putting into operation a project such as that of Lake Lanoux. [Authors’ translation.]” ﹛Sentence at 47.)

43 The provision in question was Art. 11 of the Acte Additionnel of 1866, which provides that when either France or Spain intends to carry out works which may change the regime or the volume of boundary or successive watercourses whose waters arebeing used by riparians in the other state, each country must give notice to the proper authorities of the other country in order to give them an opportunity to object and to render possible the safeguarding of all interests which might be affected. It is interpsting to note that France itself, notwithstanding its upstream interests in this dispute, construed the above article in accordance with the substantive rule of reason. In an official note of May 1, 1922, of the Prime Minister and Minister of Foreign Affairs, M. Poincaré, France objected to the enlarged jurisdiction of a Mixed Commission, saying that it was ‘ ‘ incompatible with her sovereign rights. Every State has in practice the right to carry out, on its territory, independently, such works as it pleases. In case of alterations of the regime of waters whose counterpart is being used by riparians of another State, it must only subordinate the execution to the safeguarding of the interests of these riparians. These principles are those of natural law. Article 11 of the Treatyof 26 May 1866 has added nothing. It has confined itself to indicating the procedure aimed at insuring its enforcement in the relations between France and Spain.” (Affaire du Lac Lanoux, Contre-Memoire du Gouvernement de la République Frangaise, p. 6 [Paris, 1957]; authors’ translation; emphasis added.) The French Contre-Memoire, at p. 7, refers to this “natural law” and maintains (hat,, since no alteration of the regime or volume of the Carol Eiver was planned, no violation would follow. In addition the brief indicates the French interpretation of the duties resting on France under Art. 11. The French Government stated that “ II va de s o i “ that a state must respect the rights and interests of a lower riparian in one of three possible ways, depending on the circumstances: (1) by indemnification in the form of payments or replacement of the waters appropriated (“soit par voie d'indemnisation en espèces ou en nature“) ; (2) by incorporating in its projects appropriate technical and legal guarantees (“soit en assortissant son projet de garanties techniques ou juridiques appropriées“); (3) even by giving up its project if it cannot avoid a serious injury to the interests in question (“soit même en y renongant s'il ne peut éviter de léser d'une manère sensible les intérêts en cause“). Ibid, at 29.

44 Sentence at 59. The Tribunal was applying at this point the substantive rule of reason which it had enunciated previously. See notes 39 and 42 above.

45 The consideration of all riparian interests involved is a common theme running through all of the declarations and resolutions issued so far by learned societies. For a summary of the work of international bodies in the field of international river law, together with texts, see Appendix A in Principles … American Committee (op. cit. note 21 above) at 53 et seq. For a review of the protection of existing lawful uses of international rivers in the practice of states, see Appendix E, ibid, at 100.

46 Sentence at 59. See note 44 above.

47 Principle V of the Statement of Principles of Law of the Committee on the Uses of Waters of International Rivers of the American Branch of the I.L.A. reads: ” V . A riparian may not unreasonably withhold from a co-riparian, or refuse to give it access to, data relevant to the determination or observance of their respective rights and duties under the existing regime of the system of international waters, or data with respect to any proposed change in the regime.” (Principles … American Committee, op. cit. note 21, above, at xii. See also the commentary on Principle V, ibid, at 9-12.)

48 Sentence at 59-60. See note 44 above.

49 Ibid, at 60. 50 Ibid, at 61.

50 See note 44 above.

51 Ibid. at 38.