Judson Harmon (February 3, 1846 – February 22, 1927) was a Democratic politician from Ohio. He served as United States Attorney General under President Grover Cleveland and later served as the 45th Governor of Ohio.
Judson Harmon, c. 1912
He is perhaps best known for the formulation of the “Harmon Doctrine” as articulated in an opinion he issued as U.S. Attorney General.
As Stephen C. McCaffrey explains in “The Harmon Doctrine One Hundred Years Later: Buried, Not Praised,” 36 Nat. Resources J. 549 (1996), online here:
A controversy arose in the latter part of the 19th Century over diversions of water from the Rio Grande in the United States. In October, 1894, the Mexican Minister at Washington, Matias Romero, sent a note to American Secretary of State W.Q. Gresham . . . . soliciting ‘an examination and decision of this grave question’ by the State Department.
Mexico was protesting the diversion of water by the U.S. from the Rio Grande. Mexico referred to Article VII of the 1848 Treaty of Guadalupe Hidalgo [the peace treaty signed on February 2, 1848 between the United States and Mexico that ended the Mexican–American War (1846–1848)], according to which both the countries had an obligation not to construct any work without the consent of the other that may impede or interrupt, in whole or in part, the flow of the water in the river. Secretary of State Richard Olney requested that Atty. Gen. Harmon ascertain the legal rights and obligations of the two Governments concerned and the responsibility of either, if any, for the disastrous state of things depicted in the Mexican minister’s letter. He asked specifically whether Article VII of the Treaty was ‘still in force’ and whether Mexico’s claims were supported by principles of international law independent of any treaty obligation. The issue pivoted over ‘the taking of water for irrigation from the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundary between the United States and Mexico.’ [21 Op. Att’y Gen. 274, 283 (1895)]
The length of the Rio Grande River is about 3,000 km (1864.114 miles) and half of this length forms the boundary between the United States and Mexico. The two countries are both upper and lower riparians on the river.
Nevertheless, Harmon stated in an opinion submitted on December 12, 1895 that “the rules, principles, and precedents of international law impose no liability or obligation upon the United States.” [Harmon, op. cit.] In other words, Albert Utton writes in “International Water Quality Law,” 13 Nat. Resources J. 282, 1973) “the upper riparian is entitled to do as it chooses with waters within its boundaries, without regard to coriparians.”
(You can access a full and very critical analysis of Harmon’s reasoning in Stephen C. McCaffrey, “The Harmon Doctrine One Hundred Years Later: Buried, Not Praised,” 36 Nat. Resources J. 549 (1996), online here.)
This doctrine has become known as the theory of absolute territorial sovereignty. The theory, obviously, is highly attractive to an upper riparian. But the theory has also been almost universally denounced. Indeed, McCaffrey in the article cited above points out the weaknesses in legal reasoning made by Harmon.
The U.S. Department of Justice soon took a complete reversal of position from that stated in Attorney General Harmon’s opinion, with the U.S. Supreme Court upholding the more generous position. McCaffrey notes:
. . . the United States Supreme Court, in holding that the courts could restrain, at the instance of the federal government, any acts in New Mexico by private parties that could diminish the navigability of the navigable portions of the Rio Grande below El Paso, reached a result that was identical to that argued for by Minister Romero in his protest of October, 1895, and rejected at the time by Attorney General Harmon.”
[Utton explains what other options for riparian rights look like]:
The antithesis of the theory of absolute territorial sovereignty is that of absolute territorial integrity. Under this theory, the lower riparian may demand the continuation of the full flow of the river from upstream, unaltered both as to quantity and quality.
The theory of limited territorial sovereignty lies midway between the above two. Under this theory, a state may make use of the waters flowing through its territory insofar as it does not interfere with their reasonable use by coriparians.
Of more recent vintage is the community theory. It holds that the waters of a drainage basin should be developed as a unit, without regard to national boundaries. The coriparians should jointly carry out the development and management of the basin, and the benefits derived from cooperative development would be shared by the coriparians.”
McCaffrey writes that in any event, the United States did not act on Harmon’s advice. Instead, the United States agreed to form a joint fact-finding commission with a view to reaching an equitable resolution of the matter. The Commissioners submitted a joint report in November, 1896. In his letter transmitting the report, the American commissioner stated: “It is certain … that they [Mexico] have been wronged pecuniarily to a very large extent, and the future will continue to entail more in a progressive ratio until the matter is settled.” Specifically, the report stated:
It is the opinion of the joint commission that Mexico has been
wrongfully deprived for many years of a portion of her
equitable rights in the flow of one-half of the waters of the Rio
Grande at the time of the treaty of Guadalupe Hidalgo; and if
there were no other evidence of that fact than the records and
measurements above referred to, it is apparent to the eye of any
visitor to the locality, where can be witnessed the dying fruit
trees and vines, the abandoned fields, and dry canals for the
greatest portion that has heretofore been cultivated; and while
we are considering the equitable rights of Mexico, this is also
true of the United States side, where almost the same
abandonment and destruction of former prosperous farms may
& be witnessed.” (McCaffrey, op.cit., 570-571)
The Rio Grande forms the U.S.-Mexico border while winding through the Santa Elena Pass in the Big Bend region in Texas
Paul Stanton Kibel and Gabriel Eckstein explain in “America First and the Harmon Doctrine’s Demise – A History Lesson,” for The NewJurist Law Magazine in March, 2017:
. . . during the course of the 20th century, the U.S. moved away from the Harmon Doctrine and adopted a new approach to the allocation of international watercourses. In contrast to absolute territorial sovereignty, the new approach provided that upstream and downstream nations share international rivers and that upstream and downstream nations have certain obligations to each other. This approach, which would later form the basis for the principle of equitable and reasonable utilization, is reflected in the 1944 Mexico-U.S. Waters Treaty (requiring the U.S. to leave certain quantities of Colorado River water in stream for Mexico, and obligating Mexico to leave certain quantities of Rio Conchos water in stream for the U.S.), and the 1964 Columbia River Treaty (requiring Canada to leave certain quantities of Columbia River water in stream for the U.S.). This movement in American foreign policy towards equitable and reasonable utilization was based on the recognition that the U.S. had more to lose than to gain by adhering to an absolutist principle that responded only to short-term regionally-specific needs.”
They add, with specific reference to Trump:
In terms of implications for the new American president, the history of the Harmon Doctrine suggests that it may not be so much a question of whether an America First principle should guide U.S. foreign policy, but rather a question of how we define what is in America’s best interest. There will be situations where the U.S. is ‘upstream’ (in a position to act unilaterally to achieve its objectives) but circumstances will also arise where the U.S. is ‘downstream’ (in a position where it needs support and engagement from other nations to achieve its objectives). . . . Beyond trans boundary river basins like the Rio Grande, Colorado and Columbia, there are other international challenges such as terrorism, global warming, nuclear weapons proliferation, and ocean governance that the U.S. cannot resolve alone. The reason such challenges cannot be addressed effectively by acting alone has nothing to do with a lack of American strength or resolve, but rather with the intrinsic cross-border aspects of these challenges. With few exceptions, it would be unwise for the U.S. to act unilaterally to achieve its objectives, and then expect other nations to respond favourably to America’s request for multilateralism when the U.S. finds itself in a position that necessitates cooperation.”
Legal Legacy 
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