Upreti, Trilochan, International Watercourses Law and Its Application ...

20 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 21address new circumstances and issues always remains achallenge to the international community.The uneven availability, scarcity, misuse and overuse of thewater, further confronted by the increasing demand of a rapidlyincreasing population will arguably make water the issue of thetwenty-first century. 10 It should not be misunderstood that thescarcity of fresh water only causes conflicts between sovereignindependent states. Similar problems also exist within states, asinter-state water disputes within a federal structure. As a matterof fact, most of the legal development of this area has beenenriched by the inter-state disputes resolution mechanisms inthe United States, India and other federal states. Thesignificance of these decisions is of far reaching consequence inthe development and codification of IWL. These decisions canbe considered as a foundation of the rule of equitable utilisationin the use of IWCs. 112.2.2 The United StatesThe decisions of the US Supreme Court in water disputesbetween states have provided a rich body of jurisprudence inthe area of equitable utilisation. (In inter-state disputes, the USSupreme Court has used the term ‘equitable apportionment’whilst in international relations the US has used the term‘equitable utilisation’. There is no fundamental differencebetween these terms). To analyse all these decisions is notpossible. However, a quick survey of some representativedecisions is essential. In the United States, each of the 50 statesenacts its own water law. Most such laws hold the view that thewater resources are the wealth of the state through which theyflow. For the protection of their existing use, when such useconflicts with other states, each state tends to rely on its ownlaw. The reasons are apparent. The western part of the USA isan arid or semi-arid area where water is scarce and demand is10 Ibid. p. 64.11 Ibid. p. 228.huge. As a result, there were, and still are, water disputes inwhich a lot of norms, concepts and ideas have been developedin resolving these issues. Intriguingly, as the disputes went tothe Supreme Court, they were resolved by the application offederal as well as international law, considering the dispute assimilar to the disputes between two sovereign nations. As willbe seen in the forthcoming sub-topic, such decisions haveplayed a significant role in the development of the area wherethe main thrust of the decisions has been ‘equitableapportionment'.In the Kansas v. Colorado cases of 1902 & 1907, Kansas, thedownstream and prior user, blamed Colorado for violating thefundamental principle of “use your own without destroyinganother’s legal right” in the Arkansas River. 12 Coloradocontested saying that because the river originates and flows inits territory, it has full authority to use its water without caringabout the effects outside its border. The court in its judgementapplied international law principles. The arguments of bothstates solely relying on their own respective water laws wererefused. The court decided that 'equality of right and equitybetween two states forbids any interference with the presentwithdrawal of water in Colorado for the purpose of irrigation'. 13The reasons given for the decision were that the court wanted toensure that justice was done to both states in the givensituation. Basically, the judgement upheld the rule of equitableapportionment of the waters, refusing their reliance on 'prioruse' and the 'Harmon Doctrine'. The Harmon Doctrine is basedon the 1896 legal opinion of Attorney General Harmon to theSecretary of State in relation to water sharing issues withMexico-US. Harmon stated that the US had full authority to theUS over water that flows in its territory without regards to itseffect on Mexico. The court regarded prior use as only one ofthe factors that had to be considered in determining whether ornot a certain use is equitable and not the only determining12 185 U.S. 125 (1902), p. 146.13 206 U.S. 46 (1907), pp. 44-118.