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<br />c:O....IPACTS AND AGn.EEM~NTS BETWEEN CERTAIN STATES. 25
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<br />~[,hl!:: C{lllitable llppol'lionment of the waters of an interstate river may be
<br />made by OIle of two methods: .
<br />(1) By interstate" compact or agreement" between the Stlltes, by consent
<br />of Oongl'p.ss; and
<br />(2) By Hult between the Stutes before the-Unitecl States Supreme Court.
<br />'l'he lal.ter method is the substitute, under our form of government, for
<br />Wfir between tile States. III other words, were it 110t for the provisions of
<br />OUl' ConstitutIon the States might. settle their differences over interstate rivers
<br />by resort to arms. But by the terms of the Constitution the right to resort to
<br />settlement by force was sUlTp.lHlered, and in lieu tbereof was substituted the
<br />right to ~ubmit interstate controversies to the Supreme Court in original pro-
<br />ceedings hetween the States. (Kansas v. Colorndo, 206 U. S., 4G; Rhode
<br />Island 1}. Mn.ssachuseLls, 12 Pet., 657. )
<br />A suit IJeLween the States is but R substitute for war. It is the last resort,
<br />and should not be resortecl to until all avenues of S(~ttleIllent b;}' compact have
<br />been cxlwusted. It has been suggested that the Supreme Court. shou1c1 an~
<br />Bounce the principle that no suit between States would be entertained without
<br />a preliminary ~howing that reasonable efforts hacl been made by the com-
<br />plaining State to compose the differences between it uncI .the clefel1duut State
<br />by mutual compact or interstate compact. It wonlcl nppenr that the rule of
<br />settlement by tL"eaty of international disputes over rivet.s common to two
<br />nations should likewise apply to settlements of controversies, present or pos-
<br />sible, betw~cn States of the Union.
<br />The oh:iect of the present legislnUoll is to follow the intel'l1ational principle
<br />of settlement.
<br />INTEllS'l'A1'E COMPACTS RESPECTING USE OF WATERS OF ]NTER8TATE RIVERS.
<br />WhlIe, as we have nlready observed, various of the States have settled their
<br />controvendes resllccting boundaries, fisheries, etc., by Interstate compact or by
<br />concurrent State legislation, hnviug the same effect, this met.hod of settlement
<br />of pcndilLg or threatcned controversies respecting the use and dIstribution of the-
<br />waters oC juterslnte streams for irriga.tion and other beneficial purpo:-;es, has
<br />not been nvailed of. The rip;ht or adjoining States to the use and benefit of
<br />the waters of the streams common to both Stutes hus been considel'etl llY the-
<br />cuurt in the cllse of Kansas v. Colorudo (185 U. S., 125; 206 U. S., 46), in
<br />which ('"!lSC it was held that the respective States were each entitled to nn
<br />cquHaule portion of the wfiiers of the common river, the extent of the use in
<br />cadl ~Hflte to be delermined upon the facts and circumstances of each particu-
<br />lar case.
<br />In the ahove-mentioned case the rigllt of the Ullited Stales to the use of
<br />t.he waters 01' the western streams was also considered tWU determined (PP.
<br />87--03),
<br />An equitaule apportionment or allocation of the use fmtl distribution of west~
<br />ern illtel'stn.tc streams lllny be best accomplished through the efforts of the States
<br />represent.ed by commissioners fully ncquailJted with the facts and the SUI'.
<br />rounding conditions, as well as with the future possibilities of water utilization
<br />11110n the stream::;.
<br />Pl"inciplcs of interllationa.l law are applicable to the use and distribution of
<br />interstate 1;treams, and as regards compacts between the States, "thl? rule of
<br />decision is not to be collected from the decisions of either State, but is one,
<br />i( we ma'y so sp0ak, of an intel'l1utional character." (Marlett v. Silk, 11 Pet.,
<br />1, 23,)
<br />The rights of the nation in whose territory an international stream hns its
<br />rise to tile 'use find benefit _of its waters for the development of its territory.
<br />iITnspectivc of the effect upon the territory of n lower nation .through which
<br />lhe strCfim pnsse~ on Its way to the sea, were fully considered hy .Attorn~y
<br />Geneml Judson Hurlllon, with respect to the claims macIe by the Republic of
<br />':Mexico to c!nmage hy d.epletion of the waters of lhe Rio Grande, occasioned by
<br />u!jcs in the United States. After exhaustive con~iderntion of the various
<br />U\lthoritie."l upon the subject, he arrived at the conclusion that, while the Unitecl
<br />Stut.es had the riA"ht to utlllze tile entire flow of the RIo Grande in the nece!j-
<br />sary l'eclaJnntfoll of the lands near the source of the stream, and while" prece.
<br />dents of int.ernational IU\\' imposed no liability or ohligation llpo-n t.he United
<br />States" io permit an;}' of the water of the stream to flow to El Paso, nevertheless,
<br />he lH.lvisefl that the mutter be treated as one of policy and settled by treaty with
<br />Mexico. (21 OI)'S. AUy. Gp,n., 274, 280-283.)
<br />It is !'laCe> to Jlrcclict t.hat m08t of the vast controver~ies rcs]leeting the waters
<br />,,( "'0<:;:/.......1." int.~l.'.:1.t1t.,. <::tl'''~lm.<: ('0111/1 hflVP. IW-P.ll f1voi(]p(] h~cJ ttlP. mfltt.l'!l's in <lis~
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