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It confers upon this International Joint Commission jurisdiction to investigate and report on any question arising between the United States and Canada along their common frontier on the request of either 11 country.
It also confers upon this Commission jurisdiction to hear and determine any question whatever between the two countries by consent of both. The international boundary between the United States and Canada extending from the Atlantic to the Pacific and across the Alaskan peninsula, for a distance of upwards of 3,000 miles, passes through the Great Lakes System and crosses a great number of rivers and waterways flowing from one country into the other
The present prosperity and future development of the immense regions served by these waters on both sides of the boundary requires that they be available for domestic and sanitary uses and for irrigation and power purposes, and for commerce and navigation. Any such uses by the inhabitants of either country, interfering with similar uses by the inhabitants of the other country affecting the level and flow of the waters on the other side of the boundary, necessarily concerns the interests and rights of the people of both countries. Numerous questions of difference and causes of friction have arisen in the past on account of the injurious results which have been occasioned on each side of the boundary by the uses of these waters on the other side, and difficulties of this nature must invariably become more frequent and of increasing importance as the regions along the boundary become more thickly settled. Good neighborhood and comity between nations demand that the people of each country should be protected so far as possible against injurious uses of these waters on the other side of the boundary, and at the same time it is important that an opportunity be secured on each side for the utilization of these waters for all the beneficial uses above mentioned, not only to meet the requirements of present conditions, but to provide for the greatly increased demands which the growth of population will create in the future. As neither country acting independently of the other can adequately deal with this situation, the uses of these waters, therefore, must necessarily be the subject of joint regulations, if they are to be used to the full extent required for commercial development on both sides, and if international difficulties in the future are to be avoided. The present treaty is designed to meet the requirements of the situation thus presented.
With reference to the waters defined as boundary waters, the treaty recognizes the primary importance of the use of such waters for navigation and commerce, and it provides that no other uses of such waters, in addition to those beretofore permitted or hereafter provided for by special agreement, shall be made except under the authority of the United States or the Dominion of Canada within their respective jurisdictions, and unless they are approved by the International Joint Commission established by the treaty. A series of rules or principles is adopted by the treaty governing the action of the Commission in all cases requiring its approval, and it is provided that in such cases the two countries shall have, each on its own side of the boundary, equal and similar rights in the use of such waters, and that these uses shall take precedence in the following order:
(1) Uses for domestic and sanitary purposes;
poses of navigation;
Provision is also made for safe-guarding and indemnifying any interests on either side of the line which would be injuriously affected by uses of such waters on the other side of the line.
With reference to the use of the waters of rivers flowing across the boundary and of rivers tributary to boundary waters, it is agreed that, subject to any treaty provisions previously existing, each Government reserves to itself “the exclusive jurisdiction and control over the use and diversion of all waters on its own side of the line which in their natural channels would flow across the boundary, or into boundary waters." This prorision of the treaty, as its terms imply, makes no change in existing conditions, but the treaty proceeds to establish a new rule for the benefit and protection of those interests on either side of the boundary, which might be injuriously affected by the use or diversion of such waters on the other side of the boundary, there being, under existing conditions, no remedy or redress in such cases. This rule is set forth in the treaty as follows:
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.
in other words, any one injured on either side of the line, as the result of uses or diversions of waters on the other side of the line, is given the right to recover damages for such injuries, or to take other appropriate proceedings in the courts of the country where the action resulting in such injury took place.
An exception is made, however, with reference to cases already existing, or expressly covered by special agreements between the parties, such special agreements being stated to include any mutual arrangement between the United States and the Dominion of Canada expressed by concurrent or reciprocal legislation.
One article of this treaty deals specifically with the situation at Niagara Falls, it being agreed 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 ;” and a limitation is put upon the amount of water which may be diverted from the Niagara River above the Falls for power purposes on each side of the boundary. The preservation of the scenic grandeur of the Falls is thus assured during the life of the treaty.
The treaty further provides for an equal apportionment of the waters of the St. Mary and Milk Rivers, which flow across the boundary from Montana into Canada, certain prior appropriations of their natural flow being reserved on each side, and the measurement and apportionment of such waters being under the direction of the International Joint Commission. It is also agreed that the United States shall be entitled to use the Milk River, which ultimately flows back into the United States, as a channel for the conveyance of surplus waters diverted through a canal from the head waters of the St. Mary River into the Milk River. The adjustment of the respective interests on each side of the line in the use of these rivers involved many difficulties and complications, and has long been a matter of difference between the two Governments. The arrangement now arrived at is regarded on both sides as a most satisfactory solution of this difficult question, in that it observes the general principle of equality of division and although it secures to the United States certain benefits which are not shared by Canada, yet these benefits are due to natural advantages favoring the United States, and, on account of natural conditions on the Canadian side, no corresponding benefits could be secured there.
The International Joint Commission, established by this treaty, consists of six members, three appointed on each side, and in addition to
the authority conferred on this Commission with reference to the use of boundary waters the treaty also provides that upon the request of either Government any questions or matters of difference arising between the United States and 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," may be referred from time to time to this Commission for examination and report. In cases so referred the Commission is required to examine into and report upon the facts and circumstances, together with such conclusions and recommendations as may be appropriate.
Either country, therefore, may call upon this Commission acting jointly, or upon its own section of the Commission acting separately, to examine into and report upon any question or matter of difference arising between them along their common frontier. It would be difficult to overestimate the advantage and convenience to both countries of having a permanent body, organized as this is with both countries equally represented, upon which either may call for a thorough investigation of any questions of difference involving the interests of their citizens or subjects along the thousands of miles of their common frontier. There are now pending between the two countries many such questions, some of them of long standing, and many more will necessarily arise in the future, all of which, under the provisions of this treaty, may appropriately be referred to this Commission for examination and report pursuant to the authority thus conferred on it as a commission of inquiry. Although the reports of the Commission on the questions so referred are not in themselves binding upon either country, they will inevitably exercise a strong influence upon the ultimate settlement of such questions; and even if the Commissioners are not entirely in accord in the conculsions reached, their reports will at least furnish a common fund of information which will be of immense assistance in reaching a final adjustment by diplomatic negotiations.
In order that the Commission may be enabled to make a full and searching investigation of questions referred to it for that purpose, provision is made in the treaty for empowering it to administer oaths to witnesses and to take evidence on oath whenever necessary in any proceeding or inquiry or matter within its jurisdiction.
The treaty further provides that in addition to acting as a commission of inquiry the International Joint Commission may be called upon to hear and determine any questions or matters of difference involving
the rights, obligations or interests of the United States or the Dominion
These provisions of the treaty in effect establish a new tribunal of arbitration between the United States and Canada, by which questions of difference arising between them, and which concern only themselves, may be settled by their own representatives without resort to outside intervention.
The treaty is to remain in force for a fixed period of five years from the date of ratification and thereafter until terminated by twelve months written notice given by either Government to the other.
This treaty was approved by the United States Senate on the 3rd of March of last year, and in giving such approval the Senate added a proviso declaratory of the meaning of certain of its provisions with reference to the use of the waters at the rapids of the Sault Ste. Marie. This declaration was subject to the acceptance of the Canadian Government, and in effect opened up the treaty for reconsideration by that Government. Subsequently the Government of the United States took steps by condemnation proceedings to acquire title to the property at the Sault Ste. Marie rapids with reference to which the proviso had been added by the Senate, thus removing all difference on that ground. Meanwhile, however, the opportunity thus offered to reconsider the treaty had been taken advantage of by local interests on the Canadian side elsewhere along the boundary and new objections had been raised as to certain other provisions of the treaty. This situation necessitated renewed negotiations of a delicate character which were undertaken by Mr. Knox, the present Secretary of State, and have now been carried through to a successful issue under his direction assisted by Mr. Anderson, so that the treaty will now go into effect in its original form, as approved by the Senate.