The Harmon Doctrine

The Doctrine of Absolute Territorial Sovereignty is most often identified with an opinion prepared in 1895 by the 41st Attorney General of the United States, Judson Harmon, in response to a request by the Department of State for advice concerning a dispute with Mexico over the use of waters of the Rio Grande.

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Pursuant to this principle, when a watercourse flowed from upstream nations through downstream nations, the upstream nations were lawfully entitled to capture or otherwise use, all the water resources that passed through their boundaries without any obligation to downstream nations.

The Harmon Doctrine aligned with the U.S. interests on the upper basin of the Rio Grande. It also later aligned with the U.S. interests on the Colorado River. The Harmon Doctrine became problematic, however, when applied to Mexico’s tributaries to the Rio Grande and in the Columbia River basin. The Principle of Absolute Territorial Sovereignty, which had worked to the U.S. advantage on the upper basin of the Rio Grande and the Colorado River, now threatened to undermine U.S. interests in the waters of the Rio Conchos and the Columbia River.

As these consequences became clearer, during the 20th century, the U.S. moved away from the Harmon Doctrine and adopted a new approach to the allocation of international watercourses. The new approach provided that upstream and downstream nations share international rivers and that they have certain obligations to each other.

Right from Partition till the Indus Treaty and, in some respects, even thereafter, India swore by the Harmon Doctrine, while even the U.S. government recognized Harmon’s opinion for what it was: “a piece of advocacy that might be useful as a negotiating device but hardly one that provided a basis for resolving concrete controversies”. The Indus Basin Treaty marked a statesman-like retreat from the Harmon postures India had adopted after Partition, ignoring the background.

When Bangladesh took the Farakka Barrage Dispute to the U.N. General Assembly in 1976, India told the Special Political Committee (at the 21st meeting):

“India’s views regarding the utilization of waters of an international river were similar to those held by the majority of states. When a river crossed more than one country, each country was entitled to an equitable share of the waters of that river… Those views did not conform to the Harmon Doctrine of absolute sovereignty of a riparian state over the waters within its territory… India, for its part, had always subscribed to the view that each riparian state was entitled to a reasonable and equitable share of the waters of an international river.” 

In India, even in the settlement of inter-state water disputes Harmon has never found favour. Though the SC did not ‘intend to dilate anew on the judicial precedents on the aspect of sharing of water of an inter-state river’ it firmly rejected the Harmon Doctrine recently in State of Karnataka v. State of Tamil Nadu, [Civil Appeal No. 2453 of 2007].