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conclusion regarding the jurisdiction of the Commission under article III of the 1909 Boundary Waters Treaty (TS 548; 36 Stat. 2448; 12-Bevans 319) with respect to the construction and operation of an ice boom by the U.S. Government in the U.S. waters of the St. Mary's River. An identical letter was sent to the Canadian Section by Canada's Department of External Affairs. The Commission had concluded in December 1975 that the Governments of the United States and Canada should submit the matter of the boom to the Commission to make a preliminary determination as to whether there was a possibility that the structure would have a material transboundary effect. Mr. Vine's letter stated the U.S. views on the jurisdictional issues as follows:
It is a well established principle of international law that no State may be subjected to the jurisdiction of an international organization without its consent. Such consent is normally found in the instrument or instruments establishing the organization, in this case the Boundary Waters Treaty. Jurisdiction is not presumed; it must always be set forth clearly in the constituent instrument. Consistent with well established principles of construction of agreements, recognized by the Commission in its opinion in the Rainy River Improvement Company Application (Docket 1, 1912), where the document is reasonably certain and complete, it is in itself a sufficient manifestation of the intent of the parties to it. As the Commission states, ". . . an international commission finds its authority to act in the treaty creating it or in supplemental treaties defining its powers, and . . . any action taken by it beyond the terms of the treaty fairly construed, would be coram non judice and void. It would bind neither Government." (Id., Opinion of the Commission, p.7).
The Boundary Waters Treaty is silent on the question of the Commission's jurisdiction to render a preliminary determination as described in your letter regarding the need for an application in any given case. We are unaware of precedents in the practice of the Commission, or of other analogous international organizations, where a preliminary or special jurisdiction has been assumed to determine whether the organization in fact had jurisdiction over a particular matter, in the absence of a specific provision to that effect in its constituent instrument, or a request or application properly submitted to it. It is settled, however, that once the Commission has received an application for an order of approval, it may determine whether it has jurisdiction to consider the matter. The Commission's initial docket, previously cited, turns on such a question.
On the other hand, the treaty is clear that certain works enumerated in the second paragraph of article III are expressly reserved by the two Governments from the jurisdiction of the Commission. These include "governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbors, and other governmental works for the benefits 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 . . . It should be noted that this reservation does not depend on an agreement between the parties, as contemplated in the exceptions to the first paragraph of the article.
This clear and unequivocal reservation of jurisdiction under article III arose in part from conservatism prevalent at the time of conclusion of the treaty regarding the permissible powers of the new Commission mechanism in light of its impact on important matters which had, until then, remained exclusively within national jurisdiction. The work of the Commission over this century has well demonstrated the wisdom of the conclusion of the treaty and the establishment of the Commission. It has facilitated even closer bilateral cooperation over the years in areas of mutual concern and interest. Notwithstanding this history and the laudable spirit which motivated this letter, it remains axiomatic that the express provisions of the treaty cannot be amended by the Commission but only by the Governments themselves in accordance with their respective constitutional processes.
It is evident that both parties reserved their right to determine unilaterally whether a particular governmental work on one side of the boundary in boundary waters will have a material transboundary effect on levels and flows. Nonetheless, both Governments have come to consult upon request with respect to works which might raise any question with regard to article III's jurisdictional threshold of "materiality." While there has yet emerged no precise definition of this term, which in early drafts of the treaty was linked to effects which would be productive of injury to citizens of the other country, both Governments fully concur in the spirit of Commissioner Mignault's Opinion in the Massena Weir Case (Docket 15, 1918) which you quote in your letter. The Commission's jurisdiction in that case was, of course, founded on the application of a nongovernmental entity under article III, paragraph 1 of the treaty. The Commissioner's intervention was prompted by the failure of the Governments to consult in advance of the application. The case of the St. Mary's ice boom is distinguishable in a number of important respects. It involves governmental works clearly within the contemplation of article III, paragraph 2. There has been no application. Moreover, the parties have consulted and have carefully studied the possible effects of the boom in reaching agreement that no material transboundary impact is indicated. There has been no unilateral determination of "materiality" of effect in this case.
In future cases where governmental works are proposed for the benefit of commerce and navigation, I would expect that decisions regarding the necessity or desirability of securing the approval of the Commission will be made only after notification and, if requested, ensuing bilateral consultations. This is consistent with the general spirit of the Treaty and the traditional practice of advance notification and consultation which has been developed by the two Governments. Wherever doubt or disagreement exists with respect to a particular governmental work for the benefit of commerce and navigation, I would expect the matter to be resolved either by making application to the Commission under article III
or by referring the matter under article IX of the Treaty. Of course, either Government may choose to make application for such a work, even in the event it is agreed that the indicated transboundary impact is immaterial (for example, Docket 100, 1975).
Dept. of State File No. P760122-0153. Art. III of the U.S.-Canada Boundary Waters Treaty of 1909 (TS 548; 36 Stat. 2448; 12 Bevans 310) provides:
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.
Section 166 of the Water Resources Development Act of 1976 (P.L. 94-587; 90 Stat. 2934; 33 U.S.C. 426k), approved October 22, 1976, authorizes a five-year demonstration program to increase temporarily the rate of diversion of water from Lake Michigan at Chicago, Illinois, for the purpose of testing the practicability of increasing the average annual diversion from the existing limit of 3,200 cubic feet per second up to a maximum of 10,000 cubic feet per second. The increase in the rate of abstraction is to be accomplished incrementally during periods of below-average lake levels, and is to take into consideration the effects of such increase on the Illinois Waterway and navigational requirements of the Great Lakes-St. Lawrence Seaway. The program is to be developed by the Corps of Engineers in cooperation with the State of Illinois and the Metropolitan Sanitary District of Greater Chicago.
The Department of State opposed this legislation, and had successfully opposed similar legislation in the past, when it was under consideration in the House of Representatives. Kempton B. Jenkins, Acting Assistant Secretary for Congressional Relations, on September 20, 1976, wrote to Congressman Ray Roberts, Chairman of the Water Resources Subcommittee of the House Public Works and Transportation Committee, to indicate the Department's concerns:
The adoption of the proposed legislation, without consultation with Canada, could, in the view of the Department, lead to a serious bilateral problem. We have been frequently called upon in the past
.[to testify]concerning Canadian views on similar proposals to increase unilaterally the diversion, in both extreme and average water level periods, and have noted Canada's strong opposition. Although we have not admitted the validity of Canadian legal arguments based on the complex of agreements between the two governments governing the utilization of the waters of the Great Lakes, it is nonetheless clear that Canada does have legitimate rights and interests in the shared waters of the Great Lakes System.
. [A] recent report of the International Joint Commission [IJC] entitled, Further Regulation of the Great Lakes, recommends that a study be conducted of all diversions, present or proposed. into and out of the Great Lakes Basin. We are in the process of negotiating with Canada the responses of the two governments to this recommendation as well as to the other recommendations of the IJC.
It is possible that the IJC study and/or a demonstration program could change Canadian views regarding an increase in the Chicago Diversion; however, unilateral action on our part would be contrary to the spirit of cooperation which has developed since the signature of the Boundary Waters Treaty of 1909 and to U.S. interests.
I would ask that our views be taken into consideration in connection with your Subcommittee's deliberations on this legislation. The Department of State stands ready to assist you either by providing more information or by consulting with the Government of Canada at an early date, should you so desire.
Dept. of State File No. P76 0154-1981.
Tijuana River Flood Control
On September 28, 1976, the President signed into law “An Act To provide for acquisition of lands in connection with the international Tijuana River flood control project, and for other purposes" (P.L. 94425; 90 Stat. 1333; 22 USC 277d-33). It amends Public Law 89-640, approved October 10, 1966, which authorized the conclusion of an agreement between the United States and Mexico for the joint construction, operation, and maintenance of an international flood control project for the Tijuana River, in accordance with the provisions of the U.S.-Mexico treaty of February 3, 1944, relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande (TS 994; 59 Stat. 1219; 9 Bevans 1166). Under this authorization an agreement was concluded between the two countries (International Boundary and Water Commission Minute No. 225, dated June 19, 1967) providing for a channel in Mexico to be constructed at Mexican expense, and a channel in the United States at U.S. expense.
After the 1966 legislation was approved, the original construction plan was scrapped in favor of a modified U.S. project that was considered more environmentally sound and less oriented toward
urban development. The project would involve construction of a lessthan-mile-long concrete channel with north and south levees adjoining it, rather than the 5.5-mile long channel emptying into the Pacific Ocean, as proposed in the original project. Local and State officials were committed to pay no more than 60 percent of the total rights-of-way costs. The 1976 Act authorizes Federal funding for the modified project and the remaining land acquisition costs, so that the United States can fulfill its obligations to Mexico, which has completed its portion of the project.
See also H. Rept. 94-1399, Part 1, and S. Rept. 94-1237, 94th Cong., 2d Sess.
International Maritime Law
On August 31, 1976, President Ford transmitted to the Senate, for advice and consent to acceptance, the International Convention for the Safety of Life at Sea, 1974, done November 1, 1974 (Senate Executive 0, 94th Congress, 2d Session). The Convention was signed on behalf of the United States on November 1, 1974, and on behalf of 37 other states during the time it was open for signature. It is to enter into force 12 months after the date on which not less than 25 states, the combined merchant fleets of which constitute not less than 50 percent of the gross tonnage of the world's merchant shipping, have become parties to it.
The objective of the Convention is to bring up to date the international regulations for safety of life at sea in light of amendments adopted by the Assembly of the Intergovernmental Maritime Consultative Organization (IMCO), pursuant to the International Convention for the Safety of Life at Sea, 1960 (TIAS 5780; 16 UST 185), in 1966, 1967, 1968, 1969, 1971, and 1973, and to provide improved and accelerated amendment procedures. Upon its entry into force the 1974 Convention will, as between contracting governments, replace and abrogate the 1960 Convention.
The 1974 Convention sets forth the basic undertaking of contracting governments, together with procedural provisions. Annexed to the Convention and forming an integral part of it are chapters containing technical regulations.
The Department of State informed the President, in a report on August 9, 1976, that no additional legislation is necessary to implement the Convention. All of the technical amendments incorporated in the 1974 Convention had previously been accepted by the United States on the advice and consent of the Senate, but none of them had received the necessary explicit acceptance by the required two thirds of the contracting governments to enter into force. The