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

* *

36,000 cubic feet of water per second. The only statement in the article as to the object of this limitation is that "it is expedient * to limit the diversion of waters from the Niagara river so that the level of Lake Erie and the flow of the stream shall not be appreciably affected." There appears to be no record showing the reasons for fixing the particular amounts allowed to be diverted by each country. It is understood that in allowing the larger amount to Canada, the facts were taken into account that the great bulk of the Horseshoe Falls lies in Canadian territory, and that Chicago was diverting a considerable amount of water from Lake Michigan which would otherwise go over Niagara Falls; also that consideration was given to the expectation that some of the power generated on the Canadian side would be transmitted to and used in the United States, as is actually the case. There is reason to believe, also, that one of the governing factors was the desire of both governments to preserve the scenic beauty of Niagara Falls by leaving undisturbed as great a volume of water as was consistent with the protection of vested rights, and that the amounts of water apportioned represented the requirements of vested interests on the respective sides of the boundary.

The concluding paragraph of this article states that its prohibition "shall not apply to the diversion of water for sanitary or domestic purposes or for the service of canals for the purposes of navigation."

(g) St. Mary and Milk Rivers.-By article VI of the treaty, St. Mary and Milk rivers and their tributaries are to be treated as one stream for power and irrigation purposes, and the waters thereof apportioned equally between the two countries.

(h) Order of Precedence in Uses.-Article VIII also defines the order of precedence to be observed among the various uses enumerated for these boundary waters and it is provided that "no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence." This order of precedence recognizes the supreme importance of public health. All other uses are to be put aside so far as they conflict with the paramount requirement of "uses for domestic and sanitary purposes." Navigation interests come next. These interests on the Great Lakes and connecting waterways are of immense and rapidly increasing importance. Not only is an enormous capital invested in navigation or transportation on these waters, but the communities large and small along their shores are to a considerable extent dependent thereon, and to a less degree communities farther afield but connected by transportation lines with the lakes. The third and final use in the order of precedence is "for power and irrigation purposes.'

Domestic and sanitary purposes therefore come first; navigation interests second; and power and irrigation last. As a matter of fact, although bracketed together in the treaty, power and irrigation do not bear at all the same mutual relation to navigation. Broadly speaking, power development along the international frontier belongs to the eastern half of the continent, and irrigation to the western half. Power may come in direct conflict with navigation; irrigation is unlikely to do so. Use for power, though of less vital or general signifi

cance to the Great Lakes communities than uses for sanitation or navigation, is nevertheless of very great and rapidly increasing importance.

(i) Commission an Investigatory Body.-Under article IX of the treaty the International Joint Commission also is constituted an investigatory body, for the purpose of examining into and reporting upon any questions or matters of difference arising along the common frontier that shall be referred to it from time to time by either the government of the United States or the government of Canada.

(j) Commission to Decide Disputes.-Under article X of the treaty any questions or matters of difference arising between the High Contracting Parties involving the rights, obligations, or interests of the United States of the Dominion of Canada, either in relation to each other or to their respective inhabitants, may be referred for decision to the International Joint Commission, it being understood that on the part of the United States such action will be by and with the advice and consent of the Senate and on the part of Great Britain with the consent of the government of Canada.

(k) Defines "Special Agreements."-Article XIII defines "special agreements," referred to in article III as being "understood and intended to include not only direct agreements between the High Contracting Parties, but also any mutual arrangement between the United States and the Dominion of Canada expressed by concurrent or reciprocal legislation on the part of Congress and the Parliament of the Dominion."

4. Organization and Procedure

The Commission met for organization in Washington, under the requirements or article XII of the treaty, on January 10, 1912.

There is a Secretary for each section, the United States and Canadian, and such secretaries act as Joint Secretaries of the Commission at its joint session. Engineers and clerks are employed as required.

The six members constituting the commission sit, not as Americans and Canadians, but as representatives of both countries, pledged to decide the questions that come before them with the same fairness and impartiality that govern the decisions of Canadian and American courts. Their jurisdiction is not altogether that of a court of law, nor of an umpire, nor of an investigatory body, but it combines some of the characteristics and a good deal of the spirit of all three. It is a final court of appeal for certain classes of cases involving the use or diversion of boundary waters. Subject to certain constitutional limitations, it may be used by the two countries for the final settlement of any matter at issue between them. And it is also available to investigate and report upon matters affecting the two nations whose final settlement is left to their governments.

The commission has power to administer oaths to witnesses, and to take evidence on oath whenever deemed necessary in any proceeding, or inquiry, or matter within its jurisdiction under this treaty, and all parties interested therein. shall be given convenient opportunity to be heard, and the High Contracting Parties agree to adopt such legislation as may be appropriate and necessary to give the commission the powers above mentioned on each side of the boundary,

and to provide for the issue of subpoenas and for compelling the attendance of witnesses in proceedings before the commission. The commission may adopt such rules of procedure as shall be in accordance with justice and equity, and may make such examination in person and through agents or employees as may be deemed advisable,

Permanent offices, each in charge of a Secretary, are maintained in Ottawa and Washington. The American Section is housed at the Old Land Office Building, Washington, D. C.

5. Publications

(a) International Joint Commission; Organization, Jurisdiction and Operation, 1924, obtainable from the Secretary.

6. Admission of Attorneys

There are no requirements for admission to practice before the commission.

819

CHAPTER 90

INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES, ALASKA, AND CANADA

1. Mission

To define, mark, and maintain the boundary between the United States and Canada, except on the Great Lakes and St. Lawrence river, and to maintain the boundary between the United States and Canada and between Alaska and Canada.

2. History

The convention of January 24, 1903,1 between the United States and Great Britain, provided for the settlement of questions between the two countries with respect to the boundary line between Alaska and British possessions in North. America.

Provision was made by the Treaty of April 21, 1906, for the appointment by each government of one commissioner, with whom may be associated such surveyors, astronomers, and other assistants as each government may elect.

The Treaty of April 11, 1908,3 stipulated that each of the High Contracting Parties appoint an expert geographer or surveyor as commissioner. This was the basis for the creation of the present commission.

3. Activities

(a) The Treaty of 1903 provided that the experts appointed to the Boundary Commission proceed "with all convenient speed" to lay down the boundary line in conformity with the decision rendered by the tribunal created by said treaty.1 This referred to the boundary between southeastern Alaska and British Columbia, 893 miles in length.

(b) The personnel provided for service on the commission by said Treaty of 1906, were required to locate the boundary line, erect the necessary boundary marks, make the necessary surveys, and file duplicate records thereof with their respective governments, in the matter of the boundary between Alaska and Canada along the 141st meridian, length 647 miles.

(c) Said Treaty of 1908, by articles I to VIII, inclusive, provided that the commissioners appointed jointly execute the necessary surveys, repair existing boundary marks, erect additional boundary marks, and lay down a boundary line between the United States and Canada, from the Atlantic to the Pacific, except where the boundary is defined by the Great Lakes and the St. Lawrence river, in accordance with existing treaties, upon quadruplicate sets of accurate modern charts, and further, that said commissioners prepare, in duplicate, and file with each government a joint report, or reports, describing in detail the course of the boundary so marked by them, and the character and location of the several monuments and boundary marks and ranges marking it.3

132 Stat. 1961.

234 Stat. 2948, pt. 3.

8 35 Stat. 2003.