Water, water everywhere, but too few drops to drink: the coming fresh water crisis and international environmental law.

• Author: McCaffrey, Stephen

INTRODUCTION

I am delighted and highly honored to deliver the McDougal Lecture here at the University of Denver College of Law. I must also say that I feel quite humbled. I could never hope to do justice to the work of the late Professor Myres S. McDougal, after whom this lecture is named. Professor McDougal was one of the great legal minds of the past century, and probably the century's most original thinker in the field of international law. Anyone who tries for the first time to understand Professor McDougal's terminology and approach -- an approach that has come to be known as the "Yale School" -- should be prepared to come away with a headache. Or, at least with that feeling that comes from thinking about something, viewing something, in a radically different way -- like seeing a Picasso for the first time.

Now, I never felt that I fully comprehended McDougal's approach, even by the time I had the great fortune of becoming a member of the International Law Commission of the United Nations. You can imagine my surprise, therefore, when the member of the Commission from Sudan, Chief Justice El-Rasheed, in commenting upon a statement I had made, called it a "McDougalian analysis." I wasn't sure whether he was complementing me on the incisiveness of my remarks, or suggesting that they were impenetrable! (He later assured me that he was an admirer of McDougal.)

But today my subject is quite down-to-earth. I want to talk to you about the global fresh water shortage, which in all probability will reach crisis proportions in the first decades of the next century. This subject is convenient, not only because it is near and dear to my heart, but also because it ties together the great state of Colorado and international environmental law, the theme of this colloquium.

THE HARMON DOCTRINE

I start this story in the last century, just over one hundred years ago, in the Rockies not too far west of here. It was there that actions of farmers and ranchers in the 1880s and 1890s touched off a controversy between the United States and Mexico that produced a legal theory which has become famous--or, more accurately, infamous--throughout the world. In a nutshell,(1) these Colorado farmers and ranchers began diverting so much water from the headwaters of the Rio Grande to irrigate the San Luis Valley that their counterparts in Mexico noticed a substantial drop in the flow of the river; a drop that was so great, that they feared their communities would be "annihilated," in the words of the Mexican Minister in Washington at the time, Matias Romero.(2) Indeed, a U.S. Army general responsible for Texas reported that the Colorado diversions had left the Rio Grande a dry bed for five hundred miles.(3)

After a series of diplomatic communications on the issue between the two countries, the American Secretary of State, Richard Olney, referred the matter to Attorney General Judson Harmon. As an aside, you may think it rather odd that the State Department would ask the Justice Department for advice on international law. But at that time, the State Department did not yet have its own legal adviser's office - it was not established until 1931.(4) Specifically, Secretary Olney asked whether Mexico's claims to Rio Grande water are supported by international law.

The views expressed in the Attorney General's response have become known as the "Harmon Doctrine." In essence, what Harmon said was that we could do anything we wanted within our territory, irrespective of any consequences that may befall others, because of what Professor Louis Henkin has called "the 'S' word": sovereignty.(5) (Does this sound familiar?) Specifically, Harmon declared, "[t]he fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory."(6) As support for this proposition he relied on an opinion by none other than Chief Justice John Marshall, in which the great jurist intoned: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself."(7) This led Harmon to conclude that while "considerations of comity" may lead to a different answer, "the rules, principles, and precedents of international law impose no liability or obligation upon the United States."(8)

Now, whenever you hear someone make a statement about the law that is this, well, absolute, you tend to want to examine its foundations a little more closely. And in fact, when you do so, you find that Harmon's conclusions were not supported, much less compelled, by the law as it existed at the time.(9) Take, for example, Chief Justice Marshall's ringing declaration about the exclusivity and absoluteness of territorial sovereignty. This dictum was uttered in a case involving, not an international river, but whether a ship, the schooner Exchange, was entitled to sovereign immunity. Far from deciding that the vessel could not enjoy immunity because it was in an American port, and thus under the exclusive, absolute jurisdiction of the United States, the Court concluded that the Exchange was, in fact, entitled to immunity. The justices, under Marshall's wise guidance, thus recognized that there are limitations to the concept of "absolute" sovereignty--limitations that apparently escaped Attorney General Harmon.

You are probably asking yourselves, what does all this have to do with international environmental law, or even with the subject of my remarks? The answer is, everything. Because if a country really is absolutely sovereign, in the sense that it is not responsible for the consequences outside its territory of actions within it, the countries affected by those consequences would have no legal recourse--they would have to try to persuade the source state to agree to abate the interference. Thus, the only binding source of international environmental law would be treaties, and even those would be very difficult to negotiate, given that the point of departure for negotiations would be the freedom of states to impose externalities on other states and on areas beyond the limits of national jurisdiction.

In fact, Harmon's opinion has a certain resonance with the first clause of what perhaps today may be described as the "venerable" Principle 21 of the 1972 Stockholm Declaration on the Human Environment.(10) That clause tells us that "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies." Fortunately, in a clear repudiation of the Harmon Doctrine, the second clause of Principle 21 tells us that this "sovereign right" of states is tempered by "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." Thus, the United States does have to be mindful of the effects in other countries--such as Mexico--of acts within its territory. Because like the United States, Mexico is also sovereign over its territory, its sovereignty too must be respected.

This principle does not apply only to rivers, of course. It applies much more broadly, to everything from desertification and biological diversity to climate change and depletion of the stratospheric ozone layer. Though now nearly thirty years old, Principle 21's continued vitality is demonstrated by its...