Water rights laws in the nineteen Western States : Volume 3

page 124

124 INTERNATIONAL LAW AFFECTING WATER RIGITS into the treaty It has been said that the Canadian negotiator Sir George Gibbons believed this to be 50 But is such incorporation consistent with prescrving cach nationright to protest interference harming navigation One student of the teaty has concluded that the American negotiator Chandler Anderson did not share this belief and that in fact Article IT does not incorporate the Harmon doctrine Another writer has suggested Mr Anderson may have viewed the article a5 an appropriate distinction betwesn boundary waters and tributary waters It is also possble the article was largely prompted by American desires to protect the Chicago diversion of Lake Michigan water The diversion existed at the time the treaty was negotiated had already cngaged the two nations attention and definitely was considered by negotiators of both countries Aticle 11 excepts the remedy provision from application cases already existing which is consistent with protecting the Chicago diversion if cases mean incidents and actvites such as the diversion Elitw Root who was Secretary of State when the treaty was negotiated stated to the Senate Committec on Forcign Relations that the teaty excluded the Chicago diversionA 1958 memorandum of the State Department interpreted Antice 11 a5 follows Piper supra7 2t Grifin supre notc at 60 61 Apparenty Me Anderson made no dlrect wiiienHatmon doctine and 1s reation ot fack thereo Asticle Grffn reports that no mention of the Harmon doctineany conncction appearsthe letters and memorands of Mr Anderson to the Secteary of Stote orthe Secretarycomespondence with theAmbassador Further in19port 10 the Sectetary of State submitted the Seccetay in Docomber 1907 on the daf traty Anderson commented tha the dosting of boundry eters being hed in common inconsistent vith the princple of abiolute sovceignty of each naton up to the rnational boundary Andeeson went on53y hat absolute sovcrsgnty caries with it the ightfnviolabilleysuch terioril watess and Inviolability on exch sids imposescoesstence estaint upon the othe 50 tht neiher country st iberty 10 50 useown waters 3sinjuriously aflect the other Ms Anderson then summarized the uses inteenationa law would permit each countsy to make of water on tsside as being those which did not interfecs with the coexistence ights of the and was not injuious to The quotations appearGrifin at 6061 Consdesing the quotations and the falure to metion the Harmon doctrin in corrsspondence Mr Grffn concludes that Mr Andetson did not beliove the Harman doctrine legally sound and that neitherM Anderson nor other Americans conected with negotiatig the weaty intended the doctene be incorporated inte the wats Piper supre note at 78 Mr Piper givesspecifc ressan for suspecting Mr Anderson considered Articleexpressedisinction that should be drawn generally 95ce Gllln aqpra pote2t 9 121 3133 3837 See Mann Ellis Kraus upra note 32 30 272273 4US Congres Serate Commitce on Forcign Relaions learngs and Procecdings on Trcaty Between United Staes and Canada Conecening Boundary Waters 615t Cong 24 35 1910