4. Organization

(a) The commission is composed of a commissioner selected by each of the governments and a presiding officer selected by mutual agreement of the two governments.3

(b) A Secretary appointed by each of the governments, the two secretaries acting as "Joint Secretaries of the Commission and * * subject to its in

structions." 4

*

5

(c) Agency of the United States, with counsel, authorized to present arguments in favor of or against any claim before the commission. This agency is also the Agency of the General Claims Commission (q. v. ante), and its office is in Washington.

(d) Agency of Mexico, with counsel, representing Mexico. This agency is in Mexico City.5

3 Article I, Special Claims Convention, United States and Mexico, signed September 10, 1923, proclaimed by the President February 23, 1924.

4 Article V, Special Claims Convention, United States and Mexico, signed September 10, 1923, proclaimed by the President February 23, 1924.

5 Article IV of the Special Claims Convention, United States and Mexico, signed September 10, proclaimed by the President February 23, 1924.

812

CHAPTER 89

INTERNATIONAL JOINT COMMISSION

1. Origin and Mission

The International Joint Commission was created by the treaty between the United States and Great Britain signed January 11, 1909,1 the object of which is "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 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."

The International Joint Commission was designed to meet the special needs of two countries whose inhabitants have a common fountain of law, the same traditions, and similar institutions of government, but who live under two distinct and separate governmental jurisdictions.

The line that marks the boundary between these two governmental jurisdictions extends across the continent, from the Atlantic to the Pacific, a distance of more than 3,500 miles. At least 2,000 miles of this boundary is marked by navigable and nonnavigable waters, with an aggregate population inhabiting their shores of approximately six and a half millions of people. These waters are the common property of the people of both the United States and Canada, and the right to their use for sanitary and domestic purposes, for navigation for power, and for irrigation purposes, or for any other lawful purpose, is a right which the inhabitants of the two countries enjoy in common. In the exercise of this common property right, or in the use of this common property, controversies between the inhabitants of the two countries have arisen in the past, are now pending, and, as the demand for the use of these boundary waters for these purposes increases with the increase of population along the boundary, controversies will continue to arise and increase in number. The International Joint Commission affords these neighboring populations, in their international relations, a simple, inexpensive, common-sense means of settling promptly their differences, whether these differences are national, state, municipal, or individual.

2. History

The genesis of the International Joint Commission dates back to the 90's, when two irrigation congresses were held at Denver and Albuquerque. At the first of these, in 1894, one of the Canadian delegates introduced a resolution, which was unanimously adopted, urging upon the United States "the appointment of an international commission to act in conjunction with the authorities of Mexico and Canada in adjudicating the conflicting rights which have arisen, or may

136 Stat. 2448.

hereafter arise, on streams of an international character." A similar resolution was adopted at Albuquerque the following year.

In 1896 the government of Canada passed an Order in Council embodying the principles of these resolutions, and took up with the United States government, through the British Embassy at Washington, the question of the establishment of an international commission. The government was not, however, prepared to go on with the matter at that time, and it was not until 1902 that by concurrent legislation the two governments created what was known as the International Waterways Commission, which must not, however, be confused with the Inter- ́ national Joint Commission.

The Waterways Commission, which consisted of six members, three representing the United States and three representing Canada, was purely an investigating body, without any final jurisdiction.

During the commission's existence, it has disposed of a number of important questions involving the use of boundary waters, and has investigated others. Some of these questions have involved the interests of the state, others of municipalities, and still others of corporations and individuals. They touched such vital issues as public health, sanitation, and water supply; their decision affected the interests of millions of people on both sides of the frontier, and were an important factor in investments running into hundreds of millions of dollars. All of these cases have been heard, whenever possible, at the location of the proposed works and every one interested, great or small, has been given the fullest opportunity to present his evidence.

Opportunities for further useful work on the part of this commission continue to develop. When the people generally and their representatives are informed of and understand the jurisdiction and functions of the commission and the motives actuating the two governments in creating this link between the two countries, then indeed will its highest purposes be attained, and its decisions and recommendations have their greatest force through an appreciation by the public of the possibilities of settling international disputes by peaceful means.

The Waterways Commission submitted a number of valuable reports to the two governments, as a result of which the latter entered into negotiations culminating in the Treaty of January 11, 1909, ratified and proclaimed by the United States in 19101 and by Canada in 1911.

Under the provisions of article VII of this treaty the International Joint Commission was established, composed of six commissioners, three on the part of the United States appointed by the President thereof, and three on the part of the United Kingdom appointed by His Majesty on the recommendation of the Governor in Council of the Dominion of Canada.

3. Treaty of 1909

(a) Defines boundary waters as the "waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes,

136 Stat. 2448.

rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary."

Boundary waters, therefore, 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.

There are three exceptions to "boundary waters" as defined by the treaty: (1) Tributary waters, which in their natural channels would flow into such lakes, rivers, and waterways as the Seneca, Genesee, and Sandusky, on the United States side, and the Grand, Thames, and Michipicoten, on the Canadian side; (2) waters flowing from such lakes, rivers and waterways, as the Winnipeg, lower St. Lawrence, and lower St. John; (3) waters of rivers flowing across the boundary, such as the Richelieu, Red, Souris, St. Mary, Milk, Columbia, and Kootenay.

(b) Article I of the treaty provides that "the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally," subject to the laws and regulations of either country not inconsistent with the privilege of free navigation. And it is further agreed that "so long as this treaty shall remain in force, this same right of navigation shall extend to the waters of Lake Michigan and to all canals connecting boundary waters, and now existing or which may hereafter be constructed on either side of the line." The right is reserved to either country to adopt rules and regulations governing the use of its canals, and to charge tolls for the use thereof, so long as these apply equally to the citizens and vessels of both countries. Absolute equality, of use is the governing principle of this article.

It is a debatable point among geographers whether or not Lake Michigan comes within the definition of boundary waters, as a "bay, arm or inlet" of Lake Huron; but it seems clear from the language of article I that that is not the intention of the treaty, as the navigation of Lake Michigan is granted to Canada "so long as this treaty shall remain in force," as an additional privilege to the "navigation of all navigable boundary waters," which has no limitation as to time.

The provisions of article I include the United States and Canadian canals at Sault Ste. Marie, the Welland Canal, the St. Lawrence river canals above the point where the international boundary strikes the river, and some smaller artificial waterways. They exclude such canals as the Erie on the United States side and the Rideau on the Canadian side, which do not connect boundary waters.

(c) By article II each of the High Contracting Parties reserves its national jurisdiction and control over the use and diversion of waters flowing across the boundary or into boundary waters; but it is provided 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." Cases already existing at the date of the treaty, or expressly covered by special agreement between the parties, defined in article XIII, are excepted. The High Contracting Parties also reserve the right to object to any interference with or diversion of waters on the other side of the boundary, "the effect of which would be productive of material injury to the navigation interests on its own side of the boundary." This article gives Canadians the right to go into the United States courts and seek redress for injury sustained in Canada.

(d) New Uses, Obstructions, or Diversions.-"It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.

"The foregoing provisions are not intended to limit or interfere with the existing rights of the government of the United States on the one side and the government of the Dominion of Canada on the other, to undertake and carry on governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbors, and other governmental works for the benefit of commerce and navigation, provided that such works are wholly on its own side of the line, and do not materially affect the level or flow of the boundary waters on the other, nor are such provisions intended to interfere with the ordinary use of such waters for domestic and sanitary purposes."

(e) Maintaining Level and Purity of Waters.-"The High Contracting Parties agree that, except in cases provided for by special agreement between them, they will not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in waters flowing from boundary waters or in waters at a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless the construction or maintenance thereof is approved by the aforesaid International Joint Commission.

"It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other."

(f) Fixing Diversion from Niagara River.-Article V fixes the authorized diversion from the Niagara river above the Falls, for power purposes, in the case of the United States at a daily diversion at the rate of 20,000 cubic feet of water per second, and in the case of Canada at a daily diversion at the rate of