OCR Text |
Show -127- that in determining whether one State is "using, or threatening to use, more than its equitable share of the benefits of a stream, all the factors which create equities in favor of one State or the other must te weighed as of the date when the controversy is mooted. "(32OHSp»39k The case did not involve a controversy between two appropriation States. But if an allocation between appropriation States is to be just and equitable, strict adherence to the priority rule may not be possible. For example, the economy of a region may have been established on the basis of junior appropriations. So far as possible those established uses should be protected though strict application of the priority rule might jeopardize them. Apportionment calls for the exercise of an informed judgment on a consideration of many factors. Priority of appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former-these are all relevant factors. They are merely an illustrative, not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made. (5) The Indian Sub-Continent _jj Prior to the partition of the Indian Sub-Continent it was divided into British India and the Indian States. British India was divided into Provinces. The Indian States were internally independent of British India, having their own laws and courts, but by treaty were under the suzerainty of the British Crown as to foreign affairs. From 1858 to 1921 all irrigation matters in the Provinces were under the authority of the Secretary of State for India, a British Cabinet Minister. Irrigation matters in the States were under the authority of their rulers. Since the British Crown headed the foreign 1/ Except as otherwise indicated, the account which follows is based on a note by Manzur Qadir, Barrister-At-Law (Lincoln's Inn), Senior Advocate, Supreme Court of Pakistan. Mr. Qadir's note appears in "Principles of Law Governing the Uses of International Rivers", Library of Congress Cat. Card No. 57-10830, background material prepared for the Conference of the International Law Association, held at Dubrovnik, Yugoslavia, 1956. |
Source |
Original book: [State of Arizona, complainant v. State of California, Palo Verde Irrigation District, Coachella Valley County Water District, Metropolitan Water District of Southern California, City of Los Angeles, California, City of San Diego, California, and County of San Diego, California, defendants, United States of America, State of Nevada, State of New Mexico, State of Utah, interveners] : |