territorial sovereign. The circumstance, however, that regulated diversions can be effected without serious interference with navigability, and that the value of them is oftentimes inestimable has made necessary the conclusion of conventions fixing the rights and duties of riparian States. The United States has acted upon such a theory.

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§ 184. Certain Contractual Arrangements of the United States.

The United States has in the present century concluded significant agreements with Mexico, in relation to the Rio Grande,2 and with Great Britain, with respect to waters forming the Canadian boundary. Certain provisions of the latter deserve attention. Each contracting party reserved to itself "the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of all waters on its own side of the line which in their natural channels would flow across the boundary or into

1 See the reasoning of the Supreme Court of the United States in interpreting the Act of Congress of Sept. 19, 1890, 26 Stat. 454, § 10, forbidding interference with the navigability of a stream without the assent of the National Government, in the case of United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 700, 707-710. See, also, Art. II of convention between the United States and Great Britain of Jan. 11, 1909, concerning the boundary waters between the United States and Canada, Charles' Treaties, 40.

2 See convention providing for the equitable distribution of the waters of the Rio Grande for irrigation purposes, May 21, 1906, Malloy's Treaties, I, 1202. The convention made arrangement for the delivery to Mexico of a specified volume of water annually, in the bed of the Rio Grande at the point where the head works of the Old Mexican Canal existed above the city of Juarez, Mexico. Art. I. According to Art. IV the delivery of water was not to be construed as a recognition by the United States of any claim on the part of Mexico to the waters specified; and in consideration of such delivery, Mexico waived any and all claims to the waters of the Rio Grande for any purpose whatever between the head of the existing Mexican Canal and Fort Quitman, Texas, and declared to be fully settled and disposed of, and also thereby waived all claims previously asserted or existing, or that might thereafter arise or be asserted against the United States on account of any damages alleged to have been sustained by the owners of land in Mexico, by reason of the diversion by citizens of the United States of the waters of the Rio Grande. In Art. V it was declared that the United States, in entering upon the treaty, did not thereby concede, expressly or by implication, any legal basis for any claims previously asserted or which might thereafter be asserted by reason of any losses incurred by owners of land in Mexico due or alleged to be due to the diversion of the Rio Grande within the United States. It was also declared that the United States did not in any way concede the establishment of any general principle or precedent by the concluding of the treaty. The understanding of both parties was said to limit the arrangement contemplated by the treaty to the portion of the Rio Grande forming the international boundary from the head of the Mexican Canal down to Fort Quitman, Texas. 3 See convention concerning the boundary waters between the United States and Canada, Jan. 11, 1909, Charles' Treaties, 39. In this connection, see editorial comment, Am. J., IV, 668.

boundary waters." 1 It was agreed, however, that any interference or diversion on either side of the boundary, resulting in injury on the other side thereof, should 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 the diversion or interference occurred. No further uses or obstructions or diversions (in addition to those previously permitted or thereafter to be provided for by special agreement) affecting the natural level or flow of boundary waters, were to be made except by authority of the United States or Canada "within their respective jurisdictions' and with the approval of a joint commission known as the International Joint Commission established by the convention.3 Save with the approval of the Commission the construction or maintenance of no remedial or protective works or any dams or obstructions were to be permitted by either contracting party on its own side, if the effect thereof would be to raise the natural level of waters on the other side of the boundary. It was declared to be expedient to limit the diversion of waters from the Niagara River so that the level of Lake Erie and the flow of the stream should not be appreciably affected.5 The amount to be diverted from that river within the State of New York above the Falls of Niagara "for power purposes" was expressly limited, and also the amount to be taken for like purposes above those falls within the Province of Ontario.6

1 Art. II, Charles' Treaties, 40.

2 In this connection it was stated that "neither of the High Contracting Parties intends by the foregoing provision to surrender any right, which it may have, to object to any interference with or diversions 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."

3 Art. III. It was declared in this connection that these provisions were not intended to limit or interfere with the existing rights of the United States, on the one side, and 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 others for the benefit of commerce and navigation, provided such works were wholly on its own side of the line and did not materially affect the level or flow of the boundary waters on the other. Nor were such provisions "intended to interfere with the ordinary use of such waters for domestic and sanitary purposes.'

Art. IV. An exception was made, however, with respect to cases provided for by special agreement between the contracting parties. This Article embraced the further agreement that the waters defined as boundary waters, as well as waters flowing across the boundary, should not be polluted on either side to the injury of health or property on the other.

Art. V. It was said to be the desire of both parties to accomplish this object with the least possible injury to investments already made in the construction of power plants on both sides of the river.

Art. V. It should be noted that the provisions of this Article were not to apply to the diversion of water for sanitary or domestic purposes, or for the service of canals for purposes of navigation. In Art. VI arrangement was

To the International Joint Commission to be composed of six commissioners (three to be appointed in behalf of each party)1 was given broad jurisdiction in cases involving the use or obstruction or diversion of waters. The following rules or principles were adopted for its guidance. Each party was to have on its own side of the boundary similar and equal rights in the boundary waters. The following order of precedence was to be observed among the various uses enumerated, and no use was to be permitted which might tend materially to conflict with or restrain any other use given preference over it in that order: (a) uses for domestic and sanitary purposes; (b) uses for navigation, including the service of canals for the purposes of navigation; (c) uses for power and for irrigation purposes.2 Discretion was given the Commission to make its approval in any case conditional upon the construction of appropriate remedial or protective works in compensation for a particular use or proposed diversion. A majority of the commissioners was to have power to render a decision.3

made for the equal apportionment between the two countries for purposes of irrigation and power, of the waters of the St. Mary and Milk rivers and their tributaries (in the State of Montana and the Provinces of Alberta and Saskatchewan).

It should be noted that by the resolution through which the Senate advised and consented to ratification of the convention, constitutional approval of the treaty was given with the understanding that nothing in it should be construed "as affecting, or changing, any existing territorial or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of the St. Mary's River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary's River, within its own territory, and further, that nothing in this treaty shall be construed to interfere with the drainage of wet swamp and overflowed lands into streams flowing into boundary waters, and that this interpretation will be mentioned in the ratification of this treaty as conveying the true meaning of the treaty, and will, in effect, form part of the treaty.' Charles' Treaties, 46.

1 Art. VII.

2 Art. VIII. It was declared that the foregoing provisions should not apply to or disturb any existing uses of boundary waters on either side of the boundary. It was agreed that in cases involving the elevation of the natural level of waters on either side of the line as a result of the construction or maintenance on the other side of remedial or protective works or dams or other obstructions, the Commission should require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which might be injured thereby.

3 In the case of an equal division of opinion, separate reports were to be made by the commissioners on each side to their own Government. In such event the contracting parties were to endeavor to agree upon an adjustment.

It was agreed also, in Art. IX, that any other questions or matters of difference arising between the contracting parties, and involving the rights, obligations or interests of either in relation to the other or to the inhabitants of the other along the common frontier between the United States and Canada,

The International Joint Commission which was duly established, fulfilled with success its function with respect to problems of diversion referred to it.1

The terms of the convention gave proof that both the United States and Canada perceived that the diversion of waters on either side of the boundary was a matter of common interest, requiring regulation through a common agency, and that in spite of reservations in favor of each territorial sovereign, there was a distinct mutual advantage derivable from a reciprocal arrangement in restraint of acts serving to impede navigation by lowering the natural level of the boundary waters.

§ 185. Bays.

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Over all bays within its territory a State may exercise exclusive control.2 As such waters do not form channels of communication between open seas, foreign powers possess no rights of navigation therein save as incidental to the privilege of access to local ports, and except for purposes of refuge for vessels in distress.3 should be referred from time to time to the Commission for examination and report, whenever either the Government of the United States or that of the Dominion should so request. In the event of a reference, the Commission was, after making the requisite examination, to make its reports with conclusions and recommendations (subject to special restrictions imposed by the terms of reference). Such reports were not to be regarded as decisions or to possess the character of arbitral awards. The Commission was to make a joint report to both Governments in cases where a majority agreed. Provision for minority reports was made. In the event of an even division separate reports were to be made by the commissioners on each side to their own Government.

By Art. X it was agreed that "any questions or matters of difference arising between the High Contracting Parties involving the rights, obligations, or interests of the United States or of the Dominion of Canada, either in relation to each other or to their respective inhabitants", might be referred for decision to the Commission by the consent of those parties. Provision was made for the scope of the authority and functions of the Commission in cases so referred to it. The power of a majority to render a decision was acknowledged. In case of an equal division of opinion, or of inability of the Commission to render a decision or finding, the parties agreed to have recourse to arbitration.

1 As illustrative of its work, see International Joint Commission, Application of the Government of the United States for Approval of Certain Contemplated Improvements in the St. Clair River at Port Huron, Mich., Order and Opinion, Washington, 1917; International Joint Commission, Application of the St. Lawrence River Power Company, Interim Order and Opinion, Ottawa, 1918. As illustrative of its work as referee of questions submitted to it by the Governments of the United States and of the Dominion of Canada, under the provisions of Art. IX of the treaty, see Final Report of the International Joint Commission on the Lake of the Woods Reference, Washington, 1917.

2 A. H. Charteris, "Territorial Jurisdiction in Wide Bays", Int. Law Association, Proceedings, 23d Conference, Berlin, 1906, 103, 107.

Art. I of the treaty between the United States and Great Britain of Oct. 20, 1818, prohibiting American fishermen from enjoying fishing privileges

Such access is, however, commonly accorded foreign vessels of commerce. The use of bays by foreign vessels of war is regarded as dependent upon the consent of the territorial sovereign.1 That consent is doubtless to be presumed in seasons of peace, at least when such use is sought for the purpose of enabling such ships to enter a local port.2 No rule of law serves to prevent the territorial sovereign from closing at will particular bays. Their use for its own distinctive military purposes may impel it to take such a step, likewise special considerations pertaining to the safety of the State, or the interest of the public health.

Within bays, as elsewhere within its waters, the fisheries are subject to the exclusive control of the territorial sovereign.

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$186. Lakes and Enclosed Seas.

A lake or land-locked sea which forms a part of the domain of a single State is subject to its exclusive control. Although, like Lake Michigan, it connects with and constitutes a part of a system of water communications forming an international boundary and emptying into the ocean, no right of navigation is possessed by any foreign State. It has been observed that by virtue of the Canadian boundary convention of January 11, 1909, rights of navigation in that. lake were extended to the inhabitants and vessels of Canada.3

Where a lake forms a part of the territorial waters of two or more States, a common right of navigation is enjoyed by the several proprietors. Thus, Lakes Ontario, Erie, Huron and Superior, and their water communications, are treated as "international waters, being dedicated in perpetuity to the common navigation of all the inhabitants" of the countries on both sides of the boundwithin certain British bays, provided, however, that such fishermen might enter such bays for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water. See Malloy's Treaties, I, 631-632. 1 See reciprocal agreement relative to the stationing of coaling vessels in the waters of Mexico (Magdalena Bay) and the United States, as set forth in correspondence in For. Rel. 1907, II, 845-846. Also, Rev. Gén., XV, 436–439.

See Preliminary Provisions of Regulations Concerning the Legal Status of Ships and Their Crews in Foreign Ports, adopted by the Institute of International Law in 1898, Annuaire, XVII, 273, J. B. Scott, Resolutions, 144. 2 Access to Ports, infra, § 187; also Naval War College, Int. Law Topics, 1914, 35-67.

3 Charles' Treaties, 40; The Navigation of Rivers, The St. Lawrence, supra, § 162.

See provisions of Art. IV of treaty of June 5, 1854, Malloy's Treaties, I, 671; Art. XXVIII of the treaty of May 8, 1871 (which was subsequently terminated), id., 711; also documents in Moore, Dig., I, 670-691.