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The International Joint Commission between The United States and Canada1

Published online by Cambridge University Press:  04 May 2017

Robert A. MacKay
Robert A. MacKay*
Affiliation:
Dalhousie University, Halifax, N. S
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Extract

The preamble of the Boundary Waters Treaty of 1909 between Great Britain (on behalf of Canada) and the United States declares its purpose to be:

To prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitantsof the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise.

Type
Research Article
Information
American Journal of International Law , Volume 22 , Issue 2 , April 1928 , pp. 292 - 318
Copyright
Copyright © American Society of International Law 1928

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Footnotes

1

In the preparation of this manuscript I have been ably assisted by Mr. Arnold J. Zurcher, formerly President White Fellow in Political Science at Cornell University, now Charlotte Elizabeth Proctor Fellow in Politics at Princeton University.

References

2 Text in Treaties and Agreements affecting Canada in force between His Majesty and the United States of America, 1814—1925, Ottawa, 1926, p. 312; Great Britain, Treaty Series, No. 23, 1910; U. S. Treaty Series, No. 548; Supplement to this Journal,Vol. 4, p. 239.

3 The idea of a joint commission appears to have arisen from two sources: (1) International problems arising out of the diversion or obstruction of the Great Lakes. A joint commission with powers of investigation only was appointed in 1905 to study and report on several problems. In several instances it recommended a permanent joint commission with administrative powers to control the uses of boundary waters. In one report the Canadian section outlined in detail the principles which should govern such uses, and recommended a treaty establishing these principles and a commission to enforce them. This recommendation appears to have been followed very closely in framing the treaty of 1909. See full report of International Waterways Commission; Sessional Papers, Canada, Vol. 47 (1913), 19a, No. 12, especially at p. 340. (2) A dispute of long standing as to the distribution of the St. Mary and Milk Rivers and their tributaries for irrigation. An agreement between officers of both governments recommended joint control of distribution, v. H. of C. (Canada) Debates, 1910-11, pp. 9101-13; U. S. Reclamation Service Annual Reports, 1903-4, pp. 79-82; 1910, p. 160.

4 A brief analysis of the treaty of 1909 and synopsis of the cases before the Commission is contained in a pamphlet issued by the secretary of the American section entitled The International Joint Commission: Organization, Jursidiction and Operation under the Treaty of 292 January 11,1909, between the United States and Great Britain. Washington, Government Printing Office, 1924. Cf. also this Journal,Vol. VI, 187; Round Table, Vol. V, 1915, 855; Burpee, Dalhousie Review, Vol. III , 163; Burpee, University Magazine, Oct. 1915; Tawney, Minn. State Bar Association, Aug. 8, 1917.

5 “ Boundary waters include the international portions of the St. Croix and St. John Rivers between the State of Maine and the Province of New Brunswick; the St. Lawrence River from Cornwall to Kingston; Lake Ontario, Niagara River, Lake Erie, Detroit River, Lake St. Clair, St. Clair River, Lake Huron, St. Mary's River, Lake Superior, the series of small rivers and lakes from Lake Superior over the height of land to Rainy Lake, Rainy Lake, Rainy River, and the Lake of the Woods, to that minute but very controversial point in diplomatic history, the northwest point of the Northwest Angle Inlet of the Lake of the Woods.” L. J. Burpee, “ International Joint Commission,” University Magazine, Oct. 1915.

6 “ Special agreements” includes “ not only direct agreements between the High Contracting Parties, but also any mutual arrangement . . . expressed by concurrent or reciprocal legislation.” (Art. XIII.) A privately owned dam on an international stream authorized by statute in both countries,though these statutes were passed independently and without any previous understanding or arrangement between the high contracting parties, is a work authorized by “ special agreement” and is therefore outside the Commission's jurisdiction. Rainy River Improvement Co., April 18,1913.

7 Art. X I of the Treaty and Protocol to Regulate the Levels of the Lake of the Woods, signed Feb. 24,1925, this Journal,Vol. 19, Supplement, pp. 122-33.

8 Art. II. The following interesting provision is, however, added: “ But it is agreed that any interference with or diversion from their natural channel of such waters on either side of the boundary, resulting in any injury on the other side of the boundary, shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or to cases expressly covered by special agreement between the parties hereto.”

9 Application Greater Winnipeg Water District, Sept. 8, 1913, Conditional Approval, Jan. 14, 1914.

10 Hearings and Arguments, Greater Winnipeg Water District, Sept. 8, 1913, pp.24-8, 32, 36>, 58, 61-2, 64-5, 92-5.

11 Ibid., 92-5.

12 Treaties of 1794, Art. II; 1817; 1842, Arts. II, III, VII; 1854, Art. IV; 1871, Arts. XXVI-XXVIII.

13 Cobbett, Cases and Opinions on International Law, I, 123.

14 Fenwick, International Law, 267. Faber Case, Ralston's Reports of Venezuelan Arbitrations (1903), 600, 630. Cf. also I. J. C. Hearings, New Brunswick Electric Power Commission Application, 122 ff. For a contrary opinion see Oppenheim, 3rd ed., I, 321.

15 These rules follow recommendations of the Report of the Canadian Section of International Waterways Commission, 1906, Can. Scss. Pap., Vol. 47 (1913), 19a, No. 12, p. 340.

16 The rule for suspending equal distribution at points where such distribution was impossible or disadvantageous had been interpreted by the Commission to mean that it could authorize one side to divert more than a moiety of the waters, this privilege to continue so long as there was occasion bona fide to use the same, and when such use ceases the question of diversion should again be considered by the Commission, in view of the local conditions then existing.” Order and Opinion, St. Croix Water Power Co., p. 11.

17 The Watrous Island Boom Company, Order and Opinion, pp. 73-89; Michigan Northern Power, Co., Order and Opinion, p. 5.

18 Application of the State of Maine for St. Croix River Fishways, Hearings and Order, p. 136; St. Croix Water Power Co. and Sprague's Falls Manufacturing Co., Ltd., Order and Opinion, p. 4.

19 New Brunswick Electric Power Commission, Hearings and Order, pp. 2-3; Michigan Northern Power Co., Order and Opinion, pp. 5-13; 18-23.

20 It should be observed that this statement does not apply to injuries arising on one side of the line from uses or diversions on the other side of waters which in their natural channel would flow into boundary waters or across the boundary. By Article II such waters are excluded from the Commission's jurisdiction. In such cases there would clearly be the same right of suit for the injured party as if the injury occurred on the same side as the use or diversion in question. See footnote 8 above.

21 See Order of Approval, Application, Hearings, pp. 7-11.

22 Schedule A, ibid, 174-6.

23 The right of action against the Power Commission is an important concession, since the Commission is a subsidiary of the Government of New Brunswick and hence immune from suit unless by consent. See ibid., 28 ff.

24 Order and Opinion, p. 23.

25 Opinion and Order, p. 23.

26 Order, Michigan Northern Power Co., para. 12; Order, Algoma Steel Corporation, Ltd., para. 12.

27 Orders: St. Croix Water Power Co. and Sprague's Falls Mfg. Co., Ltd., para. 2; St.Lawrence River Power Co., 1918, para. 3; St. Lawrence River Power Co., 1922, para. 3;New Brunswick Electric Power Commission, paras. 1,2; International Lumber Co., para. B.

28 St. Lawrence River Power Co., 1918 and 1922; International Lumber Co.

29 Ibid., and New Brunswick Electric Power Commission.

30 Order, Watrous Island Boom Company, para. 3.

31 Michigan Northern Power Co., and Algoma Steel Corporation, Ltd.

32 Order and Opinion, Michigan Northern Power Co., p. 14.

33 Order and Opinion, Michigan Northern Power Co., p. 16.

34 Ibid., p. 17.

35 Michigan Northern Power Co., May 25,1914; A]goma Steel Corporation, Ltd., May 27, 1914; St. Croix Water Power Co. and Sprague's Falls Mfg. Co., Nov. 9,1915; St. Lawrence River Power Co., 1922.

36 St. Croix River Fishways, Oct. 3, 1923.

37 With these boards might be associated (a) the officers of the United States and Canada administering the distribution of water of the St. Mary and Milk Rivers, who, to all intents and purposes, constitute another board (see discussion of Art. VI later); (b) the Lake of the Woods Control Board, discussed later in connection with the Lake of the Woods treaty.

38 Order and Opinion, Algoma Steel Corporation, Ltd., 1914, para. 17; Order and Opinion, St. Croix Water Power Co., 1916, para. 10.

39 Order and Opinion, St. Lawrence River Power Co., 1922, para. 3. The reasons for these changes seem to have been the conviction that the Commission could legally exercise a closer control over the board than had been provided for with respect to the other boards, and that the situation on the St. Lawrence demanded speedy action in the interests of navigation, should a disagreement arise between board members. See Hearings, 31 ff.

40 Order and Opinion, 1922, p. 19.

41 Senator Kellogg declined to answer this question. Ibid., p. 20.

42 This point was raised in the Michigan Northern Power Co. Case, the United States contending that the Commission had no administrative or executive power. The Commission, however, declined to answer the question in its opinion. See Order and Opinion, pp.19-20, 23

43 See, however, observations by Senator Kellogg, St. Lawrence River Power Co., Hearing, 1922, pp. 19-20. Senator Kellogg thought that if a board could be created, it could only be created under authority of the treaty of 1909, and that the Commission could create it and keep it under its control. He failed to distinguish between the power to require a board and the power to create a board.

44 Order and Opinion, Michigan Northern Power Co., pp. 8-9. Cf. also Orders and Opinions, Algoma Steel Corporation, Ltd., pp. 7-9; St. Croix Water Power, etc., pp. 5-6; St. Lawrence River Power Co., 1922, para. 3.

45 Treaty and Protocol between Canada and the United States to Regulate the Level of the Lake of the Woods, Feb. 24, 1925; this J ou rn a l , Vol. 19, No. 4, pp. 128-33.

46 Investigation into Advisability of Maintaining Fixed Levels for Lake of the Woods, Ref. June 27, 1912; Report, June 12, 1917.

47 Rainy River Improvement Co., Apr. 12, 1912.

48 Canadian Cottons, Ltd., Mar. 22, 1919.

49 New York and Ontario Power Co., Apr. 19, 1918.

50 St. Lawrence River Power Co., Aug. 9, 1918. Renewed Dec. 5, 1922.

51 Rainy River Improvement Co., Apr. 12,1912; Watrous Island Boom Co., Apr. 6, 1912; International Lumber Co., Aug. 28,1916; St. Clair River Channel, Dec. 29,1916; New York and Ontario Power Co., Apr. 19, 1918; St. Lawrence River Power Co., Aug. 9, 1918; The State of Maine, Commissioner of Inland Fisheries, June 19, 1923; New Brunswick Electric Power Commission, Feb. 21,1925; Buffalo and Fort Erie Public Bridge Co., June 13,1925.

52 Applications for diversion for power: Michigan Northern Power Co., June 30, 1913; Algoma Steel Corporation, Ltd., Jan. 21, 1914; St. Croix Water Power Co., Jan. 29, 1915; Sprague's Falls Mfg. Co., Jan. 29,1915; Canadian Cottons, Ltd., Mar. 22, 1919. For domestic and sanitary purposes: Greater Winnipeg Water District, Sept. 8, 1913.

53 Rainy River Improvement Co., 1913.

54 The dispute over the St. Mary and Milk Rivers was of long standing. These rivers rise in Montana and flow northward into Canada. The St. Mary is a tributary to the Saskatchewan; the Milk, after flowing for about one hundred miles through Canadian territory, returns to the United States and joins the Missouri. The St. Mary is a glacial stream and constant in flow; the Milk is seasonal. In Canada the valleys of both streams are irrigable, but in the United States only the lower Milk valley after the stream re-enters from Canada is suitable. For the land available here the waters of the Milk are entirely inadequate. The United States Reclamation Service proposed, therefore, to tap the St. Mary above the international boundary, to turn the water into the channel of the Milk, and to convey it through Canadian territory to the lower Milk valley. This scheme obviously required an agreement with Canada. Failing this the Reclamation Service proposed to dig a canal wholly through American territory to convey the water of the St. Mary to land less suitable but nearer at hand. Either scheme threatened vested Canadian interests which depended on a regular supply from the St. Mary. After long negotiation between the officers of both governments, an agreement was reached and embodied in the Boundary Waters Treaty of 1909. This agreement allowed the United States to carry out the former scheme while protecting Canadian interests by international control of the distribution of the waters of both streams as indicated in the text. H. of C. (Canada) Debates, 1910-1911, pp. 9101-23; U. S. Geological Survey, Water Supply and Irrigation Papers, 1905-6, No. 172, pp. 54-55; U. S. Reclamation Service, Annual Reports, 1903-4, pp. 79-82; 1907, pp. 114r-119; Dept. Interior (Canada), Report on Irrigation, 1913, p. 10.

55 See discussion by Senator Turner, Re-argument, St. Mary-Milk Rivers, 1920, pp. 42-5.

56 Maclnnes, Re-argument, St. Mary-Milk Rivers, 1920, pp. 83-136.

57 Turner, ibid., pp. 42-83.

58 Burpee, L. J., Kiwanis Magazine, Sept. 1925, p. 353.

59 Order, St. Mary-Milk Rivers, Oct. 4, 1921

60 With the exception that the American members filed a reservation in the Final Report, Lake of the Woods Reference. See Final Report, pp. 73, 76-109.

61 Presumably, since the level and flow of waters on one side of the line were to be influenced by obstructions on the opposite side, the matter ought to have been submitted under Article VIII. (Cf. Articles III, IV and VIII.) Had Canada insisted, this might have taken place. Before conducting similar improvements in the St. Clair River Channel, four years later, the United States did submit the program to the Commission operating under Article VIII. However, in this case, the procedure furnished by Article IX was satisfactory to both governments.

62 Report Livingstone Channel Reference, Apr. 8, 1913.

63 Address, L. J. Burpee, Victorian Club, Boston, Feb. 17, 1919, p. 12. Final Report, Pollution of Boundary Waters Reference, Aug. 12, 1918. Draft treaty submitted by the Commission, Oct. 6, 1920.

64 L. j . Burpee, Kiwanis Magazine, Sept. 1925, p. 352.

65 Report on the Lake of the Woods Reference, June 12, 1917, pp. 39-40.

66 Text in Supplement to this Journal, Vol. 19, pp. 122-33.

67 Commission's Report, Senate Doc. No. 114, 67th Cong., 2nd Sess.; Engineers' Report, Sen. Doc. No. 179, 67th Cong., 2nd Sess. Of this, the final conclusions of the Commission and of the engineers who worked under its direction have been published.

68 “ To settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise.”

69 This is the view of L. J. Burpee, Canadian Secretary, The Dalhousie Review, Vol. 3 (1923-4), p. 174; of Hon. James Tawney, Minn. State Bar Association, Aug. 8, 1917. It is supported also by editorial comment, this J o u r n a l (1912), pp.192-3, and the Round Table, Vol. V (1915), p. 855.

70 “ It being understood that on the part of the United States any such action will be by and with the advice and consent of the Senate, and on the part of His Majesty's Government, with the consent of the Governor-General in Council.” (Art. X, para. 1.)

71 Article XLV, Chapter II, The Hague Convention for the Pacific Settlement of International Disputes, Oct. 18, 1907

72 Many minor questions between Canada and the United States have, of course, been .settled by the British American Claims Commission. V. Nielsen's Reports, 1927.

73 In Canada applications come through either the Department of Publie Works or the Department of the Interior; in the United States, through the Secretary of War and the Secretary of State

74 Rules, 17,18. Treaty, Art. XII. Applications may be made to the Superior Court of a Province in Canada, or to a Circuit Court of the United States. Rules of Procedure (1912), pp. 22, 23. Sundry Civil Appropriations Act, Mar. 4, 1911, Public, No. 525. Revised Statutes (Canada), 1-2 George V, cap. 28.

75 Treaty, Art. XII. For comparison with rules of evidence and attendance of witnesses in arbitral tribunals in general, see Ralston, Arbitral Lawand Procedure (1926), Ch. VI, VII.

76 This includes Senator Gardner, who was appointed twice and twice resigned.

77 Apparently when the Commission was first set up there was some confusion of thought as to the status of the commissioners, and this may account for the failure to give them permanency of tenure. When appointing the Canadian section, the Canadian Government expressed in Parliament the opinion that Canadian Commissioners should be familiar with the Administration's point of view. See Sessional Papers, Canada, 1912, No. 119; H. of C. (Canada) Debates, March 30, 1912.