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respect to projects along the common frontier that might lead to serious changes in water uses, water quality, and air quality." Mr. Vine's letter stated:
Both the United States and Canada have accepted the desirability of prior notification and consultation in our bilateral relations. In a notable speech before the Canadian Institute for International Affairs on January 23, 1975, at Winnipeg, Secretary of State for External Affairs Allan MacEachen made specific reference to this principle, emphasizing the importance of advance consultation, and noting its tendency to diminish misunderstandings on both sides of the international boundary. Mr. MacEachen likewise stressed that such consultations are an important element in maintaining healthy bilateral relations, and he has continued to reiterate these points since.
The U.S. Government shares this position fully. In his initial speech as U.S. Ambassador to Canada, Ambassador Thomas O. Enders fully endorsed this principle. A specific case in point in which this principle has been applied involved the St. Mary's ice boom. Formal notification was given by the U.S. Government to the Government of Canada with respect to the project, and the Canadian Government in turn requested consultations. These measures helped assure that sound technical expertise could be brought to bear in advance of implementation to ensure that decisions of both Governments were based on fact and sound judgment.
In addition to the use of the Commission mechanism over the past half century, bilateral agreements also reflect the importance both Governments place on the principle of institutionalizing prior notification and consultation. A recent example is article IX(2) of the Great Lakes Water Quality Agreement [TIAS 7312; 23 UST 301] which provides that "When a party becomes aware of a special pollution problem that is of joint concern and requires an immediate response, it shall notify and consult the other party forthwith about appropriate remedial action." Similarly, the 1975 agreement relating to the exchange of information on weather modification [TIAS 8056; 26 UST 540] provides in article IV that "Each party agrees to notify and to fully inform the other concerning any weather modification activities of mutual interest . . every effort shall be made to provide such notice as far in advance of such activities as may be possible. . . ." Article V of the same agreement provides in pertinent part that "The parties agree to consult, at the request of either party, regarding particular weather modification activities of mutual interest. Such consultations shall be initiated promptly on the request of a party, and in cases of urgency may be undertaken through telephonic or other rapid means of communication."
Both the United States and Canadian Governments have also strongly supported the principle of advance notification and consultation in international fora. In this regard, and in addition to the Stockholm principles and recommendations for action men
tioned in your letter, both nations were strong supporters of Title E, Principle of Information and Consultation, which was accepted by the OECD [Organization for Economic Cooperation and Development] in 1974. The Principle reads in relevant part:
Countries should refrain from carrying out projects or activities which might create a significant risk of transfrontier pollution without first informing the countries which are or may be affected and, except in cases of extreme urgency, providing a reasonable amount of time in the light of circumstances for diligent consultation.
Likewise, at a January meeting of the UNEP [United Nations Environment Program] Working Group on Shared Natural Resources in Nairobi, representatives of both Governments supported a draft principle of conduct concerning timely notification and consultation.
On the bilateral level, representatives of the two Governments, mindful of the importance of not creating duplicative or excessively burdensome new procedures or regulations, have met and discussed potential measures for enhancing prior notification and consultation. As the Commission is aware, both Federal governments must take into account constitutional and legal questions insofar as any such measures might affect actions by States, provinces, other local governments or actions by private parties. While discussions between governments have focused on the utility of more formal mechanisms to help ensure prior notification and coordination of environmental assessments on projects of the Federal governments, or projects involving Federal licensing, regulation or funding, the Commission should be aware that on May 18 Environmental Protection Agency Administrator [Russell] Train and then Environment Minister Marchand agreed on the need for more regular exchanges of information on projects with potential transboundary impacts. As the Commission will appreciate, the complexities of developing more formal mechanisms are many, and serious questions remain to be answered as to the practicability of any given system.
In this regard, the U.S. Government wishes to note the useful role the International Joint Commission has played in calling to the attention of governments potential problems along the common boundary which could call into question the mutual commitments of governments under the Boundary Waters Treaty [TS 548; 36 Stat. 2448; 12 Bevans 319]. Indeed, the Commission would be remiss in its duties if it were not to draw to the attention of governments matters of potential interest to governments which come to the attention of the Commission in the course of its normal activities. It is clearly in the long term interest of both Governments to address potential problems at an early date, and to call upon the Commission for assistance on appropriate occasions.
Dept of State File No. P77 0019-1803.
On July 26, 1976, Deputy Assistant Secretary Vine wrote a letter to the Secretary of the U.S. Section of the International Joint Commission, United States and Canada, taking issue with the Commission's
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