Title: The River Basin in History and Law
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Title: The River Basin in History and Law
Physical Description: Book
Language: English
Publisher: Reprinted from Land and Water Law Review, Vol. III, No. 1
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake VArn Collection - The River Basin in History and Law (JDV Box 43)
General Note: Box 18, Folder 5 ( Pamphlets, Books, Articles, etc - 1960s & 1970s ), Item 12
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Full Text






THE RIVER BASIN IN HISTORY
AND LAW


by LUDWIK A.


TECLAFF


JULIAN C. JUERGENSMEYER





Reprinted from

LAND AND WATER LAW REVIEW

Vol. III, No. 1, 1968


Copyrights 1968 by the University of Wyoming









BOOK REVIEWS
THE RIVER BASIN IN HISTORY AND LAW, by Ludwik A. Teclaff. The Hague:
Martinus Nijhoff, 1967. Pp. 228.


THE designation of the river basin as the unit for water
resources development is of ancient lineage as well as cur-
rent acceptance. The river basin approach of the Helsinki
Rules on the Uses of the Waters of International Rivers,
adopted by the International Law Association in 1966,' for
example, served to once again emphasize the importance of
the river basin as the primary legal, administrative, and
economic unit of water resources development and allocation
on the international scene. The adoption in 1965 of the basin
oriented Water Resources Planning Act by the United States
Congress2 made the same point on a national scale. None-
theless, legal writers and historians have done little to draw
together either on a horizontal or vertical basis the river
basin unit concept.

It is both the vertical (time) and horizontal (geographic)
perspective of the concept that Professor Teclaff seeks to set
forth in The River Basin in History and Law. Although the
book is written in English by one who is now an American
law professor, the fact that the author is also a former Polish
diplomat and the fact that the book is published in The
Netherlands correctly suggests to the reader the international
scope of the work.

The thesis which structures the author's examination of
the subject is well, but somewhat belatedly, expressed in the
closing paragraph of the book:

Finally, although the needs of the inhabitants of
1. "The general rules of international law as set forth in these chapters are
applicable to the use of the waters of an international drainage basin except
as may be provided otherwise by convention, agreement or binding custom
among the basin States." INTERNATIONAL LAW ASSOCIATION, RULES GOVERN-
ING THE USES OF INTERNATIONAL RIVERS, art. I (1966).
Professor Arthur H. Garretson states in the forward to THE RIVER
BASIN IN HISTORY AND LAW that the book is "the first fully developed
response to the important resolution passed by the International Law
Association at its New York Meeting in 1958 recognizing the legal nature
of the international river basin." Garretson, Foreword to L. TECLAFF, THE
RIVER BASIN IN HISTORY AND LAW v. (1967) [ereinafter cited as TECLAFF].
The New York resolution saw fruition in the adoption by the Association
of the Rules Governing the Uses of International Rivers at the Helsinki
meeting in August of 1966.
2. 42 U.S.C. 1962 (1965).


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LAND AND WATER LAW REVIEW


an individual basin may not always control the devel-
opment of its water resources, and works may be
designed to serve other areas and be combined with
the works of other basins, it would seem that regula-
tion of streams generally should be planned on a
basin wide scale. This follows from the primary
characteristic of drainage-that interference with
water and its movement at any point has repercus-
sions elsewhere in the river basin. Moreover, since
unified basin development is being carried out in
many river basins and is planned in many more;
since only a few areas larger than or different from
the river basin have as yet been made units of
integrated water resources planning; and since most
major river basins are large enough to absorb the
benefits of optimal water resources development, it
is felt that the basin will remain a legal entity in
the foreseeable future.3
Professor Teclaff sets about his task by discussing "the
physical unity of the river basin,"4' "the river basin as the
basis of water control for agriculture in antiquity,"' "navi-
gation and the basin,"6 "non-navigational uses and the appli-
cation of water law to the basin,"' and "multipurpose uses
and basin-wide development,"8 before he draws the mass of
material together in a regrettably brief final chapter, "bring-
ing the legal unity of the river basin into focus."9
The product can only be described as "encyclopedic";
and the complimentary term "comprehensive" and the par-
tially uncomplimentary term "general" which "encyclo-
pedic" encompasses apply equally to the work.
To take the negative aspect first, the author seems fre-
quently satisfied with generalities, and quotes and summarizes
countless sources with little or no attempt to analyze or
evaluate. To quote just one example, the author in discussing
the "international river basin" states:
Kaufmann, writing in the 1930's, refers to the
unity of international rivers (not river systems) as
3. TECLAFF 203.
4. TECLAFF, Chapter II.
5. TECLAFF, Chapter III.
6. TECLAFF, Chapter IV.
7. TECLAFF, Chapter V.
8. TECLAFF, Chapter VI.
9. TECLAFF, Chapter VII.


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Vol. III








BOOK REVIEWS


the basis for a community of voisinage relations,
which in turn create mutual legal obligations. Bjork-
sten had earlier stated that, thanks to the physical
unity of the waterway (again, not of a system of
waterways), the effect of any interference with water
might be projected beyond a state's frontiers, re-
sulting in international conflict. This, in turn, might
lead in certain circumstances to the restriction of a
state's freedom of action as far as international
rivers were concerned. For Andrassy, writing at
mid-century, the physical unity of territory in gen-
eral creates a unity of cause and effect, which brings
about the law of voisinage. But already in the early
1930's Smith not only recognized the physical unity
of the river basin, thus going beyond the concept of
river or even river system; as a consequence of this
unity, he also directly and explicitly advocated the
treatment of a river basin as a whole without regard
to political frontiers. Brierly accepts Smith's view,
seeing evidence of the treatment of the river basin
as a whole in the modern practice of states as shown
in their water disputes, and so does Lauterpacht, in
the eighth edition of Oppenheim's International
Law."1
Generalities often breed irrelevancies and The River
Basin in History and Law does not escape this fate. The
following paragraph is taken from the discussion of the
Tigris-Euphrates Basin and is not atypical of the
miscellaneous-facts approach which characterizes the first
one-third of the book:

Timber bulked large in the downriver traffic,
not merely for its own sake, but made up into rafts
for the transport of other goods. Most of the fine
timber came from beyond the basin, in the mountains
of Lebanon and Syria to the west. Another impor-
tant item was wine. One of the earliest chronological
tablets states that the fourth kingdom of Kish was
founded by a female wine merchant, Azag-Bau,
under whose dynasty there was a rapid development
of Sumerian law and commerce. An administrative
10. TECLAFF 152. Professor Teclaff does continue "On the whole, however,
writers on general international law tend to confine themselves to generali-
ties, and the concept of unity of an international river basin and ideas
concerning its treatment as a unit come more clearly from the debates and
pronouncements of the international conferences and societies." Id. Still,
the reader yearns for an explanation.


1968


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LAND AND WATER LAW REVIEW


record from Umma, in the delta area of the basin,
speaks of rations for camp followers, comprising
wine from the land of Bilak. Bilak is believed to be
the classical Bilechas, the name of a tributary of
the middle Euphrates, on which was situated the city
of Harran. Harran actually took its name from a
Babylonian word meaning "journey," so common
were the Babylonian merchants in that far-off com-
munity. According to Hawkes and Woolley it was
almost a sister city of Ur and maintained its Baby-
lonian connections down to the sixth century B.C.11
At other points the book reads like a statistical abstract:
Quantities of water were used in mining activi-
ties in the western United States, where problems
arose through diversion of streams and undesirable
effects, such as accumulation of debris from hydrau-
lic mining operations. Output of gold (in fine troy
ounces) rose from 24,000 ounces in 1840 to ten
times that much in 1850, after the California dis-
coveries, then leveled off and gradually diminished
until, in 1890, it was 1,589,000 ounces. Silver output,
on the other hand, rose spectacularly in the latter
part of the century-from 116,000 ounces in 1860,
to 12,375,000 in 1870, 30,319,000 in 1880, and
54,516,000 in 1890.
The nineteenth century was an era also of im-
mense increases in population and of a greatly
speeded up growth of cities, with consequent de-
mands for urban water supply. The population of
Europe as a whole rose from 188,000,000 in 1800, to
266,000,000 in 1850, and to 401,000,000 by 1900. That
is, it grew by forty per cent in the first half of the
nineteenth century and by fifty per cent in the
second half. United States population, swelled by
the influx of Europe's surplus, grew even more
spectacularly-from 5,297,000 in 1800 to 23,261,000
in 1850, and 76,094,000 by the end of the century. In
the water-scarce West the numbers multiplied many
times over in some states. Utah grew from 11,000
inhabitants in 1850 to 277,000 in 1900; New Mexico
from 61,500 to 195,000 within the same period; Cali-
fornia from 92,600 to 1,485,000; and Texas from
212,000 to 3,000,000.12
11. TECLAFF 43.
12. TECLAFF 81-82.


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Vol. III








BOOK REVIEWS


To return to the positive aspect of "encyclopedic," Pro-
fessor Teclaff's historical treatment is astounding and envi-
able in its comprehensiveness. So much so, that it is difficult
to 'discuss this aspect without making long lists of sources
and subjects discussed. Perhaps it will give the potential
reader some idea of the vast wealth of knowledge the book
offers to mention that there is a 351 item bibliography13 which
is so diverse it reads like the card catalogue of an ideal library
specializing in the subject. In addition there is a unique
"Table of Treaties""4 listing 105 treaties dating from 1616
to 1964 which relate to river basins.
The relative brevity of the table of cases,'" 47 entries,
correctly indicates that the legal analysis in the book is prin-
cipally in historical terms. In fact, disappointingly little
space is devoted to describing existing water laws as they
relate to present day river basin development problems. One
happy exception is the seven page summary of French,
German, Italian and Polish laws relating to administrative
allocation of water."l
All in all, perhaps the greatest value of Professor Te-
claff's work is that it charts, although it does not fully
describe, an aspect of the comparative study of water law
and development that has gone largely unnoticed. It should
add to the substantive knowledge of most readers and should
stimulate all readers to search more deeply into the myriad
glimpse the author gives of river basin development on both
a horizontal and vertical perspective.
Julian C. Juergensmeyer*









13. TECLAFF 204-17.
14. TECLAFF xvii-xxiv.
15. TECLAFF XV-XVi.
16. TECLAFF 90-96.
Assistant Professor of Law, Indiana University; B.A., Duke University,
1951; certificate des 'etudes politiques, University of Bordeaux, 1960; LL.B.,
Duke University, 1963. Member of the Ohio Bar.


1968




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