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The first objection is based on Article III, and the first paragraph of Article VIII, of the Treaty which read as follows:—
“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 Jnited 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 harbours, 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.
“This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III. and IV. of this Treaty the approval of this Commission is required, and in passing upon such cases the Commission shall be governed by the following rules or principles which are adopted by the high contracting parties for this purpose.” The first two objections were set down for argument before the Commission at Washington in November, 1912, when they were ably argued by the different counsel engaged. I will discuss these objections in the order above stated. The arguments against the jurisdiction of the Commission, so far as the first objection is concerned, were based upon the following words of section III: “obstructions on either side of the line affecting the natural level or flow of boundary waters on the other side of the line,” and it was contended that these words do not include structures which extend beyond the boundary line or across the whole boundary waters, and affect the flow on both sides of the line. This contention, I must confess, I cannot appreciate.
The Commission has jurisdiction over all obstructions on each side of the boundary line at Kettle Falls which affect the flow or level of water on the other side. It is unnecessary to define the word “obstruction,” but it may consist of, among other things, a sand bank formed by the water; a vessel which has been abandoned; a structure accidentally in the river or designedly placed there; and a part of the bank or a part of the vessel, or a part of the structure may and the remaining portion may not be an obstruction. If the question were asked: “Is there anything on the United States side in the contemplated dam which would affect the flow or level of the waters on the Canadian side,” there could only be one answer, “Yes, the whole of the work on the United States side will do so.” If the further question were asked: “Is there anything in the contemplated structure on the Canadian side which would similarly affect the waters on the United States side,” there could only be one answer to this question also.--" Yes, all that portion of the work which lies in Canadian waters will do so.” That each portion is organically or structurally connected with the other, and plays its part in disturbing the whole width of the river cannot alter this plain fact, that it is an obstruction on one side which affects the level or flow of the waters on the other. Not only is each portion an obstruction in fact, it is also an obstruction in law, and the Courts of the country in which it is situate can abate it as such. Each portion of the dam is therefore an obstruction within the meaning of Article III, an obstruction on one side which affects the level or flow of the water on the other side of the boundary line. The dam by reason of its two portions producing these analogous or reciprocal results must be looked upon as coming within the very words of the Treaty. By Article VIII of the Treaty above quoted “all cases * involving obstructions so affecting the flow or level of the river are within the jurisdiction of this Commission and it is the duty of the Commission to “pass upon " them, Unless there is something in the context of the Treaty which is inconsistent with this construction or unless it would lead to manifest absurdity, it must prevail.
After a most careful analysis of the Treaty, and the fullest consideration of the results which would flow from the adoption of this construction, I have failed to detect any inconsistency or absurdity. I would rest my judgment, so far as this objection is concerned, on this statement of the case; but, inasmuch as the views of some of my colleagues differ from those I have expressed, and the adoption of these views would greatly restrict the judicial powers of the commission and its usefulness, I will discuss briefly the argument adduced by counsel in support of the first objection and the results which would flow from the construction of Article III for which they contended. This construction involves reading into the article as a qualifier of the word “obstructions ° the words “which have no physical or structural connection with the obstructions on the other side of the boundary line.” It was argued that we must look at Article III, in the light of the “principle or policy” of the Treaty and that the article when so viewed does not apply to a work situate on both sides of a boundary water. This principle or policy must be gathered from the Treaty itself, a task which is very difficult since a treaty is ordinarily a mosaic of compromises founded not on principle but on expediency. The eminent jurists who framed the Treaty did not formulate what they regarded as the best conceivable arangement, but what they felt was the best arrangement acceptable to all parties. The most careful scrutiny, however, will not reveal any principle or policy which would prevent the Treaty applying to such a work. On the contrary the principle or policy of the Treaty gathered from the Treaty itself, is simply an intention to devolve upon the Commission among other questions touching obstructions just such questions as are involved in this application. Another contention was that the Commission should construe the Treaty in view of the legal situation with regard to boundary waters which existed at the time the Treaty was entered into.
There were or could be, in the legal situation as it them was (as there are or can be in the present legal situation),
two classes of obstructions on each side of the boundary line which affected the flow or level of the waters on the other side—first, entire structures; second, portions of structures the remainders of which lay on the other side of the line. Before the Treaty both classes when situate within the territory of the same country had national and international features in respect to all of which they stood precisely on the same footing, both in the eyes of international law and the law of that country and were alike in respect to the procedure for their abatement and for their legalization. It is a necessary corollary to this proposition that the obstructions constituted by the remaining portions of the structures and the obstructions of the first class situate on the other side of the line, were also precisely similarly circumstanced in these respects. To be more specific—at the time the Treaty was entered into a work situate entirely on the Canadian side and an obstruction on the same side which formed a portion of a work extending into United States waters were subject to the same laws, common and statutory, of Canada, and were subject to the same principles of international law. Under the laws of Canada the Courts and proper legislative powers
could abate the obstructions and the international law ap
plying to each obstruction was to be worked out by the slow and unsatisfactory expedient of diplomatic negotiation. The same statement is true rice verst with respect to an obstruction entirely situate on the United States side, and that portion of the structure mentioned which was situate on the United States side. The Treaty deals with the international phases of obstructions—hence the use of the words in Article III: “obstructions on one side of the boundary line which affect the level or flow on the other side of the boundary line.” This language is a very succinct and exact method of describing the obstructions which at the time of the adoption of the Treaty were of international significance. The Treaty substituted the Commission for the diplomatic machinery which was previously required to supplement and even vary the action of the Courts and legislatures of the different countries. Its provisions making the substitution and conferring jurisdiction upon the Commission will be found upon careful examination to be most skilfully
drawn, and admirably designed to make the substitution with as little disturbance as possible of the principles of law and international jurisprudence which previously applied to boundary waters.
On the other hand the construction of Article III. contended for by counsel opposing the application creates a distinction in the case of the second class of obstructions above mentioned, which was anomalous, entirely unnecessary and had been previously unknown. In fact the construction is inconsistent with the results which the practical application of the Treaty unquestionably works out. This will appear from the following case.
Were an application made for the approval of a work (a wing dam, for instance), at the falls stretching from the United States bank to the boundary line, there could be no question as to the jurisdiction of the Commission to grant approval.
If after its construction approval was asked for another work (another wing dam for instance) on the Canadian side commencing at the shore and abutting on the outer end of the first wing dam, but having no structural connection or community of interest therewith, the granting of such approval would undoubtedly be within the power of the Commission. Assuming that approval of the second wing dam has been granted and the wing dam constructed, and that the owner of the one wing dam has purchased the other wing dam, and used the two as contributory to a common purpose, then we would have what is practically one dam stretching from shore to shore. The only difference between this and the dam, the approval of which is now sought, is there would be a seam in the former that would be absent in the latter, through which there might be a possible leakage or run of water. There is nothing in the Treaty express or implied, preventing one person making application for both wing dams. He might also consolidate the two applications into one as this would be a mere matter of procedure. On this consolidated application, the Commission would have the power to grant approval of both wing dams. The approval of the United States portion could be granted on the ground that it was an obstruction which disturbed Canadian waters, and the Canadian portion could be approved on the ground that it disturbed United States waters. The situation would