1 Ad hoc joint commissions were established during the first decade of this century to study each of the rivers. In 1927 the International Water Commission, United States and Mexico, was created to study water distribution. Both of these efforts failed to produce a treaty. See 1 Hackworth, Digest of International Law 585–586 (Washington: Government Printing Office, 1940); 44 Stat. 1403; and U. S. House of Representatives, Report of the American Section of the International Water Commission, United States and Mexico, 71st Cong., 2d Sess., 1930, Doc. 359.

2 Feb. 3, 1944, Art. X. 59 Stat. 1219. The Colorado River meanders for more than 1400 miles. For twenty miles it forms part of the international boundary between the two countries. Before it empties into the Gulf of California, it travels one hundred miles through Mexico. The entire run-off of the river comes from the United States.

3 The treaty is terminable only by mutual consent. It continues in force until terminated by another treaty concluded for that purpose. Art. XXVIII.

4 Water from the Colorado River irrigates nearly 500,000 acres of farm land in the Mexicali area. New York Times, March 11, 1962, p. 70; The Evening Star (Washington, D. C ) , Dee. 26, 1961, p. B-20; 46 Dept. of State Bulletin 144 (1962).

5 Interest of legal scholars in the water quality of international rivers is apparently a recent development. Neither H. A. Smith, in his The Economic Uses of International Rivers (1931), nor F. J. Berber, in his Rivers in International Law (1959), discusses in any detail the problem of water quality. With increased consumptive uses of international rivers, water quality will assume greater importance. Recent instruments attest to this importance. Art. IV(10) of the Indus Waters Treaty (India-Pakistan, 1960) sets forth the intention of each party to prevent, as far as practicable, undue pollution of the mentioned waters. 55 A.J.I.L. 802 (1961). At its 1956 meeting, the International Law Association adopted as a general principle governing the use of international rivers the declaration that preventable pollution of water in one state, which does substantial injury to another state, renders the former state liable for damages. International Law Association, Report of the Forty-Seventh Conference, Dubrovnik, 1956, p. 242.

6 Art. X.

7 Art. XI(a).

8 See the statements of L. M. Lawson, U. S. Commissioner for the International Boundary Commission, in the hearings before the Senate Committee on Foreign Relations. U. S. Senate, Committee on Foreign Relations, Hearings, Water Treaty with Mexico, 79th Cong., 1st Sess., 1945, p. 944. Mr. Lawson was one of the three officials who signed the treaty on behalf of the United States. With regard to water quality, he declared: “ I n negotiating the treaty . . . we had difficulty in persuading the Mexican representatives to accept this kind of water that is recovered flow, drainage water, and return flow which would require in the future probably some dilution with fresher water of a less alkaline quality. We had no expression from the Mexicans in the negotiations except that at the beginning of the negotiations they insisted that the full amount of it be upstream water.” See ibid. 84. See also the statement of Frank Clayton, Counsel to the American Section of the International Boundary Commission, in ibid. 108–110.

9 See ibid. 1764–1765. Mr. Acheson rejected a suggestion of a reservation to the treaty providing that Mexico would accept the delivered water regardless of its quality. He explained that it was unwise to add to the plain words of the treaty additional words and phrases which were wholly unnecessary. The document, he said, was clear beyond any peradventure of a doubt. Ibid. 1777.

10 See the statement of Secretary of State Stettinius in hearings cited in note 8 above, p. 20. See also Mr. Lawson’s statement, ibid. 84, and the summary on p. 1806.

11 46 Dept. of State Bulletin 144 (1962).

12 See Senate, U.S., Water Treaty of the Colorado River and Rio Grande Favors Mexico, 79th Cong., 1st Sess., 1945, Doc. 98, pp. 15–17.Google Scholar

13 This message appeared as a full-page advertisement in The Evening Star (Washington, D. C), Dec. 26, 1961, p. B-20.

14 Fluvial or saline aggression is certainly not within the traditional concept of aggression as the use of, or threat to use, armed force. See Wright, Quincy, “The Prevention of Aggression,” 50 A.J.I.L. 526 (1956)Google Scholar. The Inter-American Treaty of Reciprocal Assistance (1947) cites as illustrative examples of aggression an unprovoked armed attack or an armed invasion.

15 Press reports following President Kennedy’s recent visit to Mexico disclose that the United States and Mexico have concluded an interim agreement to alleviate the salinity of the Colorado River. This agreement will remain in force until October, 1963, at which time a permanent agreement will take effect. Apparently the agreement is predicated on good neighborliness, without prejudice to the legal rights of either government under the 1944 Treaty. This interim agreement does not, of course, gainsay the author’s point that the dispute is susceptible of judicial settlement. See New York Times, July 1, 1962, pp. 1–2.

16 On March 16, 1962, the Presidents of the United States and of Mexico announced that the International Boundary and Water Commission would appoint a team of Mexican- American water and soil scientists to study the salinity problem. The scientists will submit their recommendations to the Commission. 46 Dept. of State Bulletin 650 (1962).

17 Both the United States and Mexico have accepted the Optional Clause with similar self-judging reservations. 1960–1961 I.C.J. Yearbook 207–208, 217–218.

18 The Tribunal declared: “. . . under the principles of international law, as well as the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” See Department of State, Trail Smelter Arbitration between the United States and Canada under Convention of April 15, 1935. Decision of the Tribunal Reported March 11, 1941 (Arbitration Series, No. 8), p. 36; reprinted in 35 A.J.I.L. 684 (1941). Lauterpacht asserts that the maxim is a general principle of law recognized by civilized states which the Court is bound to apply by virtue of Art. 38 of its Statute. 1 Lauterpacht, Oppenheim’s International Law 346 (8th ed., 1955). At the 1956 meeting of the International Law Association, some of the participants found this maxim to be vague and of little use with regard to the utilization of international rivers. See the comments of Professor P. Geiseke and A. M. Atabani, International Law Association, op. cit. 219–220, 228–229.