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Show -108* present structure of sovereign rights and relations in the control and use of American waters has been built» Navigation of the waterwa^/s of the world has long been the one omni- present use of international concern, and the one ubiquitous issue in the ad- justment of sovereign relations out of which the law of international waters has proceeded. The privilege of transit from the high seas over navigable waterways to and from the open ports of the nations, upon terms of equality,, appears now to have been extended by general treaties and conventions so uni- form as to convert the privilege into a right under international law which., may not be denied without offense« The principles ,so established by common consent of the nations for navigation of their waterways, in the absence of special agreement, have been broadened to cover other uses of waters common to two or more nations. And those principles, so amplified, are that no body of water is subject to the exclusive dominion and sovereignty of any nation not holding all its shores; that no nation may lawfully monopolize the natural advantages inherent in a water course extending beyond its territorial domain; and that each nation riparian to a stream has a proportionate interest in the utilization of its flow. No general formula for the application of these principles has yet crystallized into international law, although the convention- al practice of nations has been to protect existing uses at the time when first adjustment of conflicting sovereign claims is made and to compensate elsewhere for the resulting inequality, if any. The United States has ever been in the front rank of the nations accepting and claiming the benefits of these prin- ciples-not alone on this continent but in South America, in Africa and in other parts of the world* The general principles have been specifically ap- plied by treaties to all the boundary waters between the United States and Canadam and to some of the international waterways of the United States and Mexico*. This century-old national policy may be taken as expressive of the law of international waters to which the United States has assented, notwith- standing an occasional declaration of perverse motives coupled with factual contradiction such as preceded acceptance of free navigation on the Congo and accompanied equitable division of the -vyaters of the Ri© Grande. States that may be benefited by it. If. the magnitude of the undertaking is grossly disproportionate to the benefits which can result to public lands and property, the Court may be convinced that it is not reasonably adapted to the dischar-ge of the public trust under which the constitution authorizes Congress to act and, therefore, is not permissible as a federal project. The usually potent commerce clause of the federal constitution will hardly support the Boulder* Canyon Project which is intended to aid ultimately, if not immediately, in the "wholesale diversion of water and the consequent destruction of navi- gation in the river.. The United States has no governmental duty, nor any direct constitutional authority, to protect the citizens of Imperial Valley or else- where by flood control works; nor to aid the metropolitan district of Southern Califor-nia or any other community in procuring water for domestio or municipal uses; nor to engage in the generation and distribution of electricity or in other wraterpower enterprises upon the public lands as an ordinary commercial business*-.unless the Supreme Court is now prepared to hold that federal owner- ship of the public lands justifies the United States in drilling therein for |
