1 Report by Clyde Eagleton on the Forty-Seventh Biennial Conference of the International Law Association, 51 A.J.I.L. 89 (1957). The report sets out the full text of the statement of eight principles adopted by the Conference.

2 During consideration of the resolution by the Conference, the Chairman of the International Committee explained that no significance was to be given to the order in which these five factors were listed.

3 See Spate, India and Pakistan 108–109 (1954).

4 Note submitted by Mr. Qadir to the Dubrovnik Conference, pp. 5, 7–9. Page references are to the copy of the note printed in “Principles of Law Governing the Uses of International Eivers,” Library of Congress Catalog Card No. 57-10830, in which appear the reports and commentaries on the statement of principles governing the uses of international rivers submitted to the Dubrovnik Conference, together with the resolution adopted by the International Law Association.

5 One of the Punjab projects that Sind claimed would injure its irrigation was the Bhakra Dam and reservoir. At that time the Bhakra Dam was to store 4.75 million acre-feet of water. (A million acre-feet of water will cover a million acres to a depth of one foot.) The Bhakra Dam now nearing completion by the Government of India is designed to store 7.4 million acre-feet.

6 Report of the Indus (Rau) Commission, Vol. I, p. 121 (1942).

7 Ibid. at 10–11. The two following principles were also stated by the Commission:

“(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 U.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 ).” Ibid, at 11.

8 Ibid. at 57.

9 Ibid. at 62–63.

10 Ibid. at 58–59.

11 Ibid. at 63.

12 Ibid. at 68.

13 Ibid. at 63, 68.

14 Ibid. at 58.

15 Ibid.

16 Ibid. at 69.

17 Awards of the Arbitral Tribunal on References Nos. 1, 2 and 3 (valuation of canals, Crown waste lands brought under irrigation and irrigated forests taken on the basis of their pre-Partition value when canal water was delivered from upstream areas that became Indian territory), and No. 5 (apportionment of income from seigniorage levied by the Punjab on non-riparian states for irrigation water supplied from the Sutlej).

18 Statement before joint meeting in London of the East-India Association and the Overseas League on Feb. 23, 1955.

A statement in an article in the January, 1956, issue of our JOURNAL (50 A. J. I. L. 100) might be construed as supporting the position that by partition a country might acquire rights to use for itself supplies of water which it would otherwise have had to allow to flow on to the other country. Questioned about this, the author of the article, Mr. Abraham M. Hirsch, explained that he meant only to suggest that, where two riparians agree upon partition of the basin supplies, a country may benefit by being allowed to use for itself supplies of water which it otherwise would have had to allow to flow to the other country. He did not mean to suggest that new rights would be acquired except by a grant in the partition or other agreement.

In the case of the partition of the Punjab it was expressly “agreed that there is no question of varying the authorized shares of water to which the two Zones and the various canals are entitled.” Report of Committee B of the Punjab Partition Committee, par. 15 (1947).

19 Most (but not all) of the irrigation supplies were restored in the principal Central Bari Doab and Dipalpur canal systems; supplies have not yet been restored in the Bahawalpur State Distributary which, before Partition, irrigated 62,000 acres.

20 Comments on the 1st Eeport of the Committee, p. 11. Page reference is to the copy of Mr. Sikri’s note printed in “Principles of Law Governing the Uses of International Eivers,” cited in note 4 above.

21 21 Ops. Att’y. Gen. 274, 283 (1895).

22 Ibid. at 281–282.

23 See 35 A.J.I.L. 684 (1941).

24 The observations of four of the members of the American Branch Committee are reproduced in the booklet cited in note 4 above. The statement of principles preferred by the American Branch Committee was forwarded to the American Branch with the comment that in the Committee’s view it represented “the best formulation the Committee has yet considered upon which further analysis and discussion of the subject can be conducted.”

25 Hearings before the Senate Committee on Foreign Relations on Treaty with Mexico Eelating to the Utilization of the Waters of Certain Eivers, 79th Cong., 1st Sess., Pt. 1, pp. 97–98.

26 Ibid., Pt. 5, at p. 1762. Mr. Benedict English, a member of the Department of State legal staff, appeared before the Senate Committee conducting the hearings to discuss the obligations of the United States in the absence of a treaty. In order to avoid embarrassment to the United States in the event the Senate did not consent to the ratification of the treaty, Mr. English's statement was presented as representing only his personal view, but it is apparent, particularly from the statements of the Secretary of State and an Assistant Secretary, that it represented the view of the Department of State. Mr. English summed up his testimony as follows:

“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.” Ibid., Pt. 5, at p. 1751.

27 Note by Mr. Manzur Qadir, pp. 3–4, appearing in booklet cited in note 4 above.

28 Five delegates, all from countries with Communist governments, abstained. The resolution was “settled” by the Executive Council of the I.L.A. in London on October 26, 1956.

29 Collier’s Magazine, Aug. 4, 1951. Mr. Lilienthal’s long-term view was as follows:

“The urgent problem is how to store up now wasted waters, so they can be fed down and distributed by engineering works and canals, and used by both countries, rather than permitted to flow to the sea unused. This is not a religious or political problem, but a feasible engineering and business problem for which there is plenty of precedent and relevant experience.

“This objective, however, cannot be achieved by the countries working separately; the river pays no attention to partition—the Indus, she ‘just keeps rolling along,’ through Kashmir and India and Pakistan. The whole Indus system must be developed as a unit—designed, built and operated as a unit, as is the seven-state TVA system back in the U. S.

“Jointly financed (perhaps with World Bank help) an Indus Engineering Corporation, with representation by technical men of India, Pakistan and the World Bank, can readily work out an operating scheme for storing water wherever dams can best store it, and for diverting and distributing water.

“Once the scheme is designed, the works can be operated by an Indo-Pakistan Agency, or by a supra-national international agency such as the Schuman Plan provides in Europe, or by some special corporation like the Port of New York Authority, or some comparable scheme.”

30 The experience of those who have taken part in negotiations concerning the sharing of international rivers indicates that while the parties may make conflicting assertions of legal right, in practice their differences result more from disagreement over the facts than over the governing principles. Mr. L. M. Lawson, who as the American member of the International Boundary and Water Commission, United States and Mexico, successfully worked out with his Mexican colleague the bases for the 1944 treaty, has stated that once the parties had collected jointly data on river flow and river uses over a period of years, most of the difficulties of reaching agreement were removed.

31 Compare the Panama Canal, where no procedure for enforcement of the obligation of maintaining free transit was ever established, and the Corinth Canal, where, “although the canal is kept open for navigation to vessels of all nations, Greece exclusively controls the navigation thereof.” 1 Oppenheim, International Law 480 (Lauterpacht, 1955).

32 See 11 Paris Peace Conference of 1919 at 121 (Dept. of State).

33 Consider, for example, the following statements made at or in connection with the 1956 London conferences:

Egypt:

“ … the 1888 agreement alone provides for freedom of navigation through the canal, and the Egyptian Government guarantees freedom of navigation through the canal in accordance with its sovereignty over its own territory, through which the canal passes and which is regarded as an inseparable part of Egypt.” (Statement by President Nasser rejecting invitation to the London Conference, Aug. 12, printed in The Suez Canal Problem, July 26–September 22, 1956, Department of State Publication No. 6392, p. 50.)

Ceylon:

“ … whilst all countries which consider the Suez Canal an essential international waterway which must be available to them at all times and that their rights for that purpose should be definitely safeguarded and protected, whilst it is right for each side to take its own point of view, it must be recognised that international good will and the maintenance of peace transcend the special interests of either side.” (Statement by Sir Claude Corea before the Fourth Plenary Session, Aug. 18, ibid. at 138-139.)

India:

“Freedom of navigation is an obligation -which the Egyptian Government has to undertake in pursuance of the Convention of 1888 and of international law, and we should in our consideration of this problem see whether we have any information of the disregard of this obligation, and what can be done about it.” (Statement by Mr. V. K. Krishna Menon before the Fifth Plenary Session, Aug. 20, ibid. at 164.)

“These other things—freedom of navigation, maintenance of the canal, all the future improvements to be brought about, the contractual obligations with regard to the tolls and so on, which are even today the responsibility of the Egyptian Government [—] can only be brought about by the Egyptian Government entering into solemn obligations enforcible by, conditioned by, all the sanctions attached to international law and usage and by the provisions of the Charter of the United Nations.” (Statement by Mr. V. K. Krishna Menon before the Seventh Plenary Session, Aug. 22, ibid. at 240.)

Indonesia:

“It is not because we are less concerned with the Suez Canal issue than you but it is that we understand the right and the duty of the Egyptian people to find the ways and means to serve the interest of their people with due respect for international obligations based upon equality and mutual benefit.” (Statement by Mr. Abdulgani before the Second Plenary Session, Aug. 16, ibid. at 85.)

U.S.S.B.:

“Egypt, under whose sovereignty and in whose possession the canal is, would assume obligations to take all necessary measures to assure freedom of navigation through the Suez Canal and to protect the canal and its installations against any violations of freedom of navigation, to maintain the canal in proper condition which would satisfy the requirements of navigation, and be in keeping with modern technical requirements, to carry out works to improve the conditions of navigation required to increase the passage capacity of the Suez Canal.” (Statement by Mr. Shepilov before the Third Plenary Session, Aug. 17, ibid. at 107.)