The Coconino sun., 1924-07-11
THE COCoNTNo SUN

| Colorado, and not by land withoul
the express consent of the Mexican
government; and precisely the same
provisions, stipulations and restric-
tions in all respects, are hereby agreed
upon and adopted, and shall be scr1p-
ulously observed and enforced, by the
| two contracting governments, in ref
erence to the Rio Colorado so far and
| for such distance as the middle OF
that river is made their common boun-
dary line by the first article of this
treaty"
With the exception of the state
ment elsewhere in the treaty fixing
the boundary line between Mexico and
Arizona in the middle of the river as
it existed at the time of the treaty
from a point in the river 20 English
miles below the junction of the Gila
and Colorado rivers, up the middle of
| the river until it intersects the
present boundary line between the
United States and Mexico, the above
quotation contains all treaty provis-
ions pertaining to the use of the
Colorado river or its waters by the
| two nations.
There is no reservation of any
water from the Colorado river for
irrigation or other purpose in Mex
leo, nor any restriction or attempt
at restriction of its use in the United
States, nor was there any such res
ervation or restriction in the former
treaty of Guadalupe Hidalgo.
1t appears, therefore, that the citi-
zens of the United States may use. all
Of the water of the Colorado, even to
a complete extinguishment of the flow
of the river, and violate no provision
of the treaty.
There is one and only one duty each
nation owes the other respecting the
Colorado river, or any other river
the status of which has not been set
tied in any treaty, but which is in a
general way settled by international
law.
An international river is a natural
international servitude. The coun-
try in which the water collects to form
the river, the country of origin,
is called the dominant and the country
into which the river passes is called
the servient country. The dominant
country may not so divert or turn
the water out of its natural channel
as to inundate, flood or damage the
land or property of the upper or DOM
inant country is to permit the water
iinant country is to permit the water
that does flow across the international
boundary if any to flow In the natural
channel, and the duty of the servient
country is to so receive it and not
hold it back or divert it to the dam
age of lands or property of the upper
country Any water taken from the
stream and used by the dominant
country merely lessons the servitude
to that extent, and it may go to the
full extent of extinguishing the serv-
itude where no treaty reservations or
restrictions exist.
A clearly defined policy now
considered as the established and
settled policy of this country, is set
out in a very learned opinion of At
torney General Ipdson HaNnon re-
specting the claims Of Mexico to a
prior established right to the use OF
the waters of the Rio Grande. This
opinion appears to be the first an
nouncement of the principles of in
ternational law of the consumpt1ve
use of the waters Of an international
stream for an upper nation for irri-
cation and other uses where such
uses are necessary for the welfare,
proper development and self-preser-
walton of the country and its citizens,
Notwithstanding a similar prior use
of the waters of lower nation, from
the same source of water supply,
which may be injured or made use
less by virtue of the loss of the
water used above.
This opinion announced IN this
country the principle of international
servitude; that prior use OF water,
a so-called preferred claim, need not
be respected by an upper nation, but
the upper nation may develop Its
territory by all needful uses of the
waters which have their origin IN or
pass through its territory irrespective
of the claims of the lower nation,
that the upper nation need yield no
part of such waters of stream COM
mon to both until the upper nation
may see fit to make concession by
treaty as matter of policy or comfy
and not international law.
The opinion being later approved
as authority by the United States in
considering with Great Britain the
disposition of the waters of the Milk
river, also approved by Secretary
Lansing as defining the position OF
the United States respecting the
claims of Mexico to water from the
Colorado river, it may be taken as
an expression of the accepted doc
trine of the United States.
By reason of its direct bearing on
the subject under discussion, we take
the liberty of quoting largely from
the opinion.
"There have been disputes about
rights of navigation of international
rivers, but they have been settled BY
treaty lFor 3 list of such treaties
see Hefter Droit Int, appendix 80 I
The subject is fully discussed by
Hall lint. Law, section 39l, who de-
nies that the people on the upper
part of the river have natural right
to pass over it through foreign ter
ritory to its mouth. But if such right I
is conceded, no aid is afforded for
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