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<br />40
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<br />TEE AMERICAN JOURNAL OF INTERNATIONAL LAW
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<br />[Vol. 53
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<br />pressed the opinion that Mexico could require the United States to arbi-
<br />trate.'. There then followed a discussion off the record. Chairman Tom
<br />Connally said, "Lift your pen, Mr, Reporter," After the reporter's pen
<br />again touched paper, the following was recorded:
<br />
<br />Senator MILLIKEN. I most respectfully suggest that no one from
<br />the State Department be pushed to give an opinion, either off or
<br />on the record, that might be thrown in our teeth if we do not have a
<br />treaty, This witness has stated that he has brought in here an as-
<br />sembIage of cases and authorities which should be considered in the
<br />light of the authorities and cases that were brought here by Mr. Shaw.
<br />This witness brings these cases here, as I understand it, for that limited
<br />purpose. I will not say it is improper, but I think it, is highly inad-
<br />visable to press any of these State Department witnesses beyond that
<br />point.
<br />Senator DOWNEY. Mr. Chairman may I call this to your atten-
<br />tion: If, apparently, the position taken by this witness and the State
<br />Department witnesses, as I understand it, is correct, as I think most
<br />of us understand it, then I say that we should be advised thereby
<br />and not lose one day in stopping Mexico from building up any future
<br />right, If I got the correct implication from the testimony
<br />The OHAIRMAN. How can you do that unless you adopt this
<br />treaty f 21
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<br />A few moments later the following colloquy was recorded:
<br />
<br />Senator DOWNEY, So far as you know, has the State Department
<br />yet taken any steps toward requiring a disclaimer of right from
<br />Mexico, or in any other way, to prevent this right you speak of from
<br />developing, whatever it may be f
<br />Mr. ENGLISH [the lawyer of the Department of State]. I have
<br />no knowledge of the situation relating, to the Colorado River waters
<br />at all; I simply came here to discuss the sole question of arbitration,
<br />Senator DOWNEY. Do you not think, in view of what you have
<br />said here, that the State Department should immediately formulate
<br />
<br />28 Mr. B. M. English, the attorney at the State Department, summed 'up his testf~
<br />mony as follows':
<br />"In, eoneluf!ion, we respectfully submit the following:
<br />"First, the contentiQD that under the Senate reservation to the 192~ inter-American
<br />arbitration treaty the UnUed States can p,roperly refuse to arbitrate any matter which it
<br />does not desire to arbitrate, is unsound and unsupportable.
<br />"Second, the contention tha.t-under that treaty the United States can properly refuse
<br />to arbitrate a demand by Mexico for additional waters of the Colorado is, to say the
<br />least, extremely doubtful, particularly when the Harmon opinion is viewed in the light
<br />of the following:
<br />II (8) The practice of states as evidenced by treaties between various countries,
<br />including the United States, providing for the equitable apportionment of waters ,of
<br />international rivers.
<br />" (b) The decisions of domestic courts giving effect to the doctrine of equitable
<br />apportionment, "and .rejecting, as between the States, the Harmon doctrine.
<br />1,1 (c) The writing of authorities on international law in" opposition to the Harmon
<br />doctrine.
<br />II (d) The trail smelter arbitration, to which we referred." (Hearings, note 25"
<br />above, at 1751.)
<br />27 Hearings, note 25 above, at 1754.
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