Sharing water from transboundary rivers in Australia - an interstate common law?

Abstract

In Australia, the sharing of water from a river — such as the Murray River — that ows through or forms the boundary between two or more states (a ‘transboundary river’) has historically been resolved by political agreement. Since colonial times, one of the great unanswered questions is how to resolve transboundary river disputes in the absence of an intergovernmental agreement. One argument that has been made is that the solution lies in the development of an ‘interstate common law’ on the basis that there must be equality between states. In evaluating this potential solution, I demonstrate that one di culty with the argument is that the common law would be placing a limit on state legislative and executive power. I argue that if a limit on state power does exist, it is more appropri- ately derived directly from the text and structure of the Australian Constitution; however, the argument that an implication of ‘equality of states’ can be derived from the text and structure of the Constitution so as to place a limit on state power is not without di culty.