International Water Law – Navigational Rules Reasons to Navigate International Boundary Rivers Roman Regime: The public has the right of use and navigation, states have the right to tax and maintain the waterway, and riparians have a right to divert reasonable amounts of water Hugo Grotius (16/17 th Centuries) and Emerich de Vattel (18 th Century): Riparians should tax and bar navigation by foreigners only when the navigation causes an economic or security burden. Foreign vessels have the right to innocent passage. Commerce Transport Travel Recreation

Freedom of Navigation Early agreements focused on protecting and enhancing commerce Recent agreements have a more general purposes Facilitate transportation of people and goods Facilitate communication Promote safety of vessels and navigation (e.g., uniform regulations) Encourage regional cooperation Facilitate implementation of river projects Imposition of Duties, Customs & Tariffs Maintain Navigability of the Watercourse Applicability of the regime to tributaries Creation and duties of a River Navigation Commission Dispute resolution mechanism Maintenance of facilities (e.g., ports, ferries, mills, etc.) Others International Water Law – Navigational Rules

International Water Law: The Rise of Non-Navigational Uses Non-Navigational Uses of International Boundary Rivers Drink water Environment and habitat Fishing Fish farming Flood control Hydropower Industrial use Irrigation for agriculture Timber floating

Rio Grande/Rio Bravo River Basin United States (3 American States) Mexico (4 Mexican States) Stats Total legth: 1,885 miles Total length of border: 1,248 miles Drainage Basin 335,400 miles million people in 1995 projected to double by million people between El Paso and Juarez

Judson Harmon – 42nd United States Attorney General during Grover Cleveland’s administration What rights and obligations does the US have in its use and management of the Rio Grande in relation to Mexico? What rights does Mexico have?

International Water Law: Non-Navigational Rules and The Harmon Doctrine Harmon: “The fundamental principle of international law is the absolute sovereignty of every nation …” “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible to no limitation not imposed by itself. Any restriction upon it, deriving validly from an external source would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.” "[T]he rules, principles and precedents of international law imposed no liability or obligation on the United States”

International Water Law: Non-Navigational Rules and Absolute Territorial Sovereignty Nation is the supreme authority within a territory National interest in protecting independence Nation may use water flowing within and into its territory for any purpose (e.g., consumption, disposing of pollution, etc.) with no regard for downstream nations

Nation is the supreme authority within a territory National interest in protecting independence Nation may use water flowing within and into its territory for any purpose (e.g., consumption, disposing of pollution, etc.) with no regard for downstream nations A downstream nation has a right to unimpaired flow from upstream countries – a right to the integrity of its territory International Water Law: Non-Navigational Rules and Absolute Territorial Sovereignty

International Water Law: Non-Navigational Rules and Limited Territorial Sovereignty Every nation bordering a watercourse has the right to use water flowing in its territory, provided that the use does not cause harm other riparian nations Sic Utere Tuo Ut Alienum Non Laedas – So use your own as not to injure another's property

International Water Law: Non-Navigational Rules and Community of Interest Hugo Grotius, De juri beli ac pacis (“On the Laws of War and Peace”) “Thus a river, viewed as a stream, is the property of the people through whose territory it flows, or of the ruler under whose sway that people is … [T]he same river, viewed as running water, has remained common property, so that anyone may drink or draw water from it.” Territorial Jurisdiction of the International Commission of the River Oder, Permanent Court of International Justice [W]hen … 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 which this in fact places in relief, it is at once seen as a solution of the problem has been sought not in the idea of a right of passage of the upstream State, but in that of a community of interest of riparian States. This community of interest in a navigable river become the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others.