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The Gut Dam Claims Agreement With Canada

Published online by Cambridge University Press:  28 March 2017

Richard B. Lillich
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American Journal of International Law , Volume 59 , Issue 4 , October 1965 , pp. 892 - 898
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Copyright © American Society of International Law 1965

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References

1 Agreement between the Government of the United States of America and the Government of Canada concerning the establishment of an International Arbitral Tribunal to dispose of United States Claims relating to Gut Dam, 52 Dept. of State Bulletin 643 (1965). The President submitted the agreement to the Senate on May 17, 1965, with a view to receiving its advice and consent to ratification. S. Exec. Doc. O, 89th Cong., 1st Sess. (1965).

2 For a brief description of the Foreign Claims Settlement Commission, see Lillich, “International Claims: A Comparative Study of American and British Postwar Practice,” 39 Indiana Law J. 465, 468-479 (1964). See, generally, Lillich, International Claims: Their Adjudication by National Commissions (1962).

3 The facts given in this and the following paragraph are taken from a Department of State letter to the House Committee on the Judiciary. H.E. Eep. No. 2089, 87th Cong., 2d Sess. 5-7(1962) (letter from Hon. Frederick G. Dutton).

4 Oster v.Canada, 144 F. Supp. 746 (N.D.N.Y., 1956), digested in 50 A.J.I.L. 962 (1956); aff'd sub nom. Clay v.Canada, 238 F. 2d 400 (2d Cir., 1956), cert, denied, 353 U. S. 936 (1957).

5 For a brief discussion of the draft bill, see Be, “The Foreign Claims Settlement Commission: Its Functions and Jurisdiction,” 60 Mich. Law Bev. 1079, 1097-1098 (1962).

6 House Report, note 3 above, at 7.

7 Ibid

8 Pub.-Law No. 87-587, 76 Stat. 387 (1962).

9 House Report, note 3 above, at 4, 7.

10 Pub. Law 87-587, §1, 76 Stat. 387 (1962). Pursuant to the statute, the Commission gave notice that claims were to be filed with it on or before Oct. 15, 1963. FCSC Eeg. §560.1, 27 Fed. Beg. 11229 (1962). See also FCSC Beg. §560.2, 27 Fed. Reg. 11229-30 (1962). The Commission then established a Lake Ontario Claims Program to process these claims. See For. CI. Settlement Comm., 17th Semiann. Bep. 7-8 (1962); 18th Semiann. Eep. 6 (1963).

11 Pub. Law No. 87-587, §3, 76 Stat. 387 (1962). See FCSC Beg. §560.5, 27 Fed. Eeg. 11230 (1962).

12 Pub. Law No. 87-587, 5, 76 Stat. 387 (1962). See FCSC Beg. §560.7, 27 Fed. Beg. 11230 (1962). The report by the Senate Committee on the Judiciary explains that “while this legislation is in no way a substitute for a negotiated settlement with Canada, it does seem to the committee to be a step in the right direction. Apparently additional investigation is necessary to determine the amount of damage which is attributable to Gut Dam, inasmuch as the total damage is described as having resulted from a combination of factors. This legislation would make it possible for such investigations to go forward and, it is hoped, would contribute to reopening active negotiations with Canada.” S. Rep. No. 1750, 87th Cong., 2d Sess. 5 (1962).

13 See Lillich, note 2 above, at 477-479.

14 Ibid.

15 The Commission's Chairman stated that “the question of the utilization of the existing personnel and facilities of the Commission in carrying out the provisions of H.R. 10955 prior to the conclusion of any claims settlement with the Government of Canada or the enactment of legislation providing for a final settlement of such claims is, of course, a matter of legislative policy.” House Report, note 3 above, at 5 (letter from Hon. Edward D. Be).

16 78 Stat. 1110 (1964), 22 XJ.S.CA. §1643 (Supp. 1964). See Lillich, “The Cuban Claims Act of 1964,” 51 A.B.A.J. 445 (1965).

17 See text at notes 12 above and 57 below. See also the letter of the Chairman of the Commission to Gut Dam claimants advising them of the termination of the Lake Ontario Claims Program, in S. Exec. Doc. C, 89th Cong., 1st Sess. 10-11 (1965).

18 See note 1 above.

19 Art. I(1).

20 Art. I(2): “ I f the third member has not been designated within three months after this Agreement enters into force, either Party to this Agreement may request the President of the International Court of Justice to designate such third member.” Ibid

21 Art. I(4): “No member prior to his appointment shall have been associated directly or indirectly with any matter relating to this Agreement.” Ibid.

22 Art. I(3).

23 Ibid.See also Art. XII (4).

24 Art. II ( l ) (Emphasis added.)

25 S. Exec. Doc. C, 89th Cong., 1st Sess. 3 (1965).

26 Art. II(2) (a).

27 Art. II(2) (b).

28 Art. II(2) (a).

29 Art. II(3).

30 Art. II(2) (a).

31 Art. II(2) (c). See Lillich, “The Effectiveness of the Local Remedies Rule Today,” 1964 Proceedings, American Society of International Law 101.

32 Art. III (1).

33 Art. VI.

34 Art. IV(1).

35 Art. VII(1).

36 Art. VII(2).

38 Art. VII(3)(c).

37 Art. VII(3)(a).

39 Art. VII(3). “No other pleadings or other briefs may be submitted by either Government except at the request of or with the approval of the Tribunal.” Art. VII (4).

40 Art. V.

41 Art. VIII(l) .

42 Art. VIII(2).

43 See 1 Oppenheim, International Law $155b (8th ed., Lauterpacht, 1955). For one area where individuals soon may be accorded direct access to a permanent international forum, see Hynning, “The World Bank's Plan for the Settlement of International Investment Disputes,” 51 A.B.A.J. 558 (1965).

44 Art. “VIII(1). See, generally, White, The Use of Experts by International Tribunals (1965).

45 Art. X.

46 Art. XII(l).

47 Art. XIV.

48 Art. XII (2).

49 Art. XII(4).

50 Art. XIII. Quaere:If the tribunal finds that the United States is partially liable, must not Congress promptly appropriate funds to pay part of the awards or risk placing the United States in breach of its international obligation? See text at note 25 above. It should be noted that the Department of State takes the position that the United States is under no legal obligation to pay part of any award, Article XIII having been “intended to refer to awards granted by the tribunal on claims against the Government of Canada only.”The text of the agreement, however, does not make tli is intention apparent.

51 Lillich, “The Jay Treaty Commissions,” 37 St. John's Law Rev. 260, 282, note 91 (1963).

52 See note 2 above. See also Be, “Domestic Adjudication and Lump-Sum Settlement as an Enforcement Technique,” 1964 Proceedings, American Society of International Law 39.

53 On the latter commission, see Lillich, note 2 above, at 479-488. See also Lillich, “International Claims: A Comparative Study of United Kingdom and United States Practice,” in 17 Current Legal Problems 157, 166-175 (1964).

54 Soubbotitch has observed that ‘ ‘ the respective advantages of the two devices, the national and the international claims commissions, will ultimately depend upon the standing, legal philosophy, foreign policy and financial reliability of the nation with which the United States is to reach a settlement agreement. A mixed claims commission with Canada may be preferable to a lump-sum agreement, whereas a lump-sum agreement with the U.S.S.R., Bulgaria or Egypt would probably be preferable to a commission composed of one American member, a member of that other state, and an umpire, whose every award would have to be enforced against that other state.” Soubbotitch, Book Review, 16 Rutgers Law Eev. 634, 637 (1962).

55 Lillich, op. cit.note 2 above, at 104.

56 Lillich, note 51 above, at 283.

57 Pub. Law No. 87-587, §5, 76 Stat. 388 (1962). See text at and accompanying note 17 above. See also Ee, The Foreign Claims Settlement Commission and the Lake Ontario Claims Program, reprinted in 4 Int. Legal Materials 473 (1965).

58 See, generally, Lillich, The Protection of Foreign Investment: Six Procedural Studies, Ch. V (1965).

59 S. Exec. Doe. C, 89th Cong., 1st Sess. 1 (1965).

60 See Summers, “Present Trends in the Policy of the United States on the Legal Settlement of International Disputes,” 5 Va. J. Int. Law 200, 209 (1965).