This article is written by Utkarsh Vats and Harmanjot Kaur students of National Law Institute University, Bhopal and Institute of Law, Nirma University, Ahmedabad respectively
Transboundary disputes have always been sites of contestation and conflict regarding sovereignty over water is no different. Among other sovereignty doctrines relating to transboundary waters, the Harmon’s Doctrine is said to be the most infamous and arbitrary. The doctrine has its roots in an 1895 opinion of Judson Harmon, the then Attorney-General of the United States. It was a result of a tussle between the United States of America and Mexico over the two major watercourses they share: Rio Grande and the Colorado River. The increasing diversion of the water of river Rio Grande by the farmers in America led Mexico to protest against the omnipotent nature of use. This caused Richard Olney, the then Secretary of the State to seek advice from Harmon, who while trying to elucidate the positions of America and Mexico in International Law, said that, “The fact that Rio Grande lacks sufficient water to permit its use by the inhabitants of both countries does not entitle Mexico to impose restrictions on the USA.” In essence, the Harmon Doctrine declared the absolute entitlement of the United States over the waters of river Rio Grande without any interference from Mexico, the downstream riparian.
Harmon’s Doctrine: Flawed from the Inception?
“In its purest form, sovereignty is defined as the supreme, absolute, and untrammelled power by which a state is governed.”
Transboundary water disputes have not only been about clash of interests between two neighbouring states but also conflicts over the territorial sovereignty and its nature of use. The principles of international law relating to transboundary water resource management have their roots in a number of theories and doctrines. One of the notoriously famous one is the Harmon’s Doctrine. It provides that an upstream state may utilize the water from a transboundary river that flows within its domains, as it sees fit, without any concern about any resulting harm to its downstream neighbours. Thus, under this principle, the upstream state has no duty to cooperate or to consult, with its downstream neighbours, even if it diverts the entirety of the flow from such a shared watercourse. The notion of sovereignty has been a traditional principle in international law. Though the doctrine seems to be politically motivated, it is is one of the many other social and legal inadequacies. The doctrine has limited applicability and advocacy in only particular cases, like that of meeting the interests of upstream riparian states and looking down upon the sovereignty of downstream riparian states, far from being called a principle of international law. The sovereignty of a nation does not exist in vacuum, neither is it mutually exclusive. To co-exist is to respect and the sovereignty of other states, while all that the doctrine does is act like an instrument of widespread protest, deepening rivalry and suspicion between two sovereign states and being unapologetic about the same.
The doctrine balances interests of none; the states and varying communities. According to international law a state cannot use its territory without taking into account the consequences of such use on other states. In this sense, the doctrine is inconsistent with international law itself. The Lac Lanoux case establishes that a state is not the sole judge of its water rights, as suggested by the Harmon’s Doctrine. The worry of downstream states is not only the quantity of water but also the quality of water they would receive, for which the doctrine has no scope. The uses of water are many and instances which would require prioritising the need of one state over the other would remain unanswered as the doctrine is completely devoid of any such possibility. It is the Convention of Non-Navigational Uses of International Watercourses, 1997, which provides a solution to these hovering questions.
The United States of America applied the doctrine of sovereign equality and absolute territorial integrity in the Trail Smelter Arbitration. The doctrine of sovereign equality “embodies the idea that an upstream state may do nothing that might affect the natural flow (quality and quantity) of water into the downstream state.” Though it is premised on the principle that the consumption by one state should not hamper or injure the consumption of the other state, it is more likely to find its allies in the downstream states, as opposed to the doctrine of absolute sovereignty. The doctrine is vehemently opposed by upstream states that develop their river water resources slower than the downstream states and find themselves in a spot because the resource has been utilised and hence is limited for future use.
The doctrine of absolute sovereignty is binary to the doctrine of sovereign equality; both having little relevance in state practice and being reduced to historical principles. On one hand, the former is devoid of any sense of accountability and reasonability in use, the latter, though more equitable in nature, both doctrines very conveniently ignore the presence of states that fall in the middle of the watercourse. Therefore, the only doctrine that has gained widespread international acceptance in terms of a doctrine viable to resolve transboundary water disputes is the principle of limited territorial integrity or no significant harm rule. It is based on the idea of sic utere tuo ut alienum non laeda (one state may not cause damage or harm to its transboundary neighbour). It not only balances the rights and responsibilities of riparian states along with the watercourse, but also obligates the co-riparian states to not injure their neighbour state while utilization of the water body. The doctrine, as opposed to the earlier doctrines, is non-polar in nature and provides a middle ground. It has also inspired the United States Supreme Court’s doctrine of equitable allocation and the doctrine of equitable apportionment and utilization (“equitable utilization”), adopted in the 1997 United Nations Convention on Non-Navigable Uses of International Watercourses.
Rio Grande and America’s Tryst with Absolute Territorial Sovereignty
Perhaps one of the most visible and immediate effects on the riparian states when unilaterally using the Harmon’s doctrine for governance of international waterways passing through their territory is the strain in relationship and heightening of tensions between countries sharing water. This can lead to severe problems and even armed conflicts. While water per se, hasn’t led to a large-scale armed conflict, it sure has acted as a trigger and complemented the pre-existing tensions between states.
The repercussions faced by the state using an arbitrary measure like the Harmon’s doctrine for administration of water resources is immediate and severe, and in many cases, leads to the state abandoning the use of the doctrine altogether and sometimes plunging an entire national policy into an existential crisis. All of these aspects of the doctrine were collectively demonstrated in the case which was also the first usage- the question of the governance of the southward flowing Rio Grande River from America to Mexico.
America had been looking for a policy to govern its international waterways which aligned with the prevalent “America First” policy. The Harmon’s doctrine, which came about in 1895 from the opinion of the then Attorney General, Judson Harmon, provided the government a policy in compliance to this. Since Harmon’s doctrine relied upon the principle of “absolute territorial sovereignty”, it essentially implied that in a scenario where a watercourse was flowing upstream to downstream from one country to another, the upstream nations were entitled to use the watercourses in whatever way they pleased with no liability or obligation.
While this doctrine seemed to be working fairly well for America and also aligned with its interests in the Colorado River, to which it was the upstream nation. The Harmon Doctrine became problematic, however, when applied to Mexico’s tributaries to the Rio Grande and in the Columbia River basin. The primary tributary to the lower Rio Grande (as it flows along the Texas-Mexico border) is the Rio Conchos, which flows northward from Mexico to the Rio Grande. Similarly, the Columbia River flows south from British Columbia (in Canada) into the U.S. states of Washington and Oregon. Unlike with the Rio Grande’s upper basin and the Colorado River, with the Rio Conchos and the Columbia River, the U.S. is a downstream nation. Hence, under the Harmon Doctrine, Mexico would have no obligation to ensure the flows of the Rio Conchos reached the confluence with the Rio Grande, and Canada would be entitled to divert all of the flow of the Columbia River before it reached the U.S. border.
The principle which seemed to be working in America’s favor seemed to be severely backfiring, as it now threatened its interests in the waters of the Rio Conchos and Columbia River. It also impeded relations with Mexico in the lower basin of the Rio Grande as the river forms the river between U.S. and Mexico, where both countries held upstream and downstream status.
All of these issues created a lot of debacle in the U.S. lobby throughout most of the first half of the 20th century and the U.S. was forced to move away from the principle of absolute territorial sovereignty and eventually a more mutually agreeable way to share water resources was found wherein both riparian states would have certain obligations to one another and had to keep each other’s interests in mind. This principle would later form the premise of the principle of equitable and reasonable utilization, is reflected in the 1944 Mexico-U.S. Waters Treaty (requiring the U.S. to leave certain quantities of Colorado River water in stream for Mexico, and obligating Mexico to leave certain quantities of Rio Conchos water in stream for the U.S.), and the 1964 Columbia River Treaty (requiring Canada to leave certain quantities of Columbia River water in stream for the U.S.). This provided a new direction the U.S. foreign policy which recognized equitable distribution of natural resources.
While Harmon and his doctrine premised on anachronistic and illegitimate beliefs have been long gone, it is very important for us as responsible citizenry to know about equitable distribution and natural resources between party states and the various policies governing the same. Harmon’s doctrine might have been a fringe idea that somehow made it as national policy of a leading world power but it was still a very important part of the evolution of laws governing watercourses and thus needs to be studied and critiqued in a manner that such policy decisions are not able to take root again.