Abbildungen der Seite
PDF
EPUB

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

Engrêle

3

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
of Canada, either in relation to each other or to their respective inhabi-
tants, if both Governments agree to refer any such questions to the Com-
mission for decision; the advice and consent of the Senate being neces-
sary to any such agreement on the part of the United States.
In case
the Commission is equally divided, or otherwise unable to render a de-
cision or finding on any such question so referred, the treaty requires
that such question shall thereupon be referred for decision to an umpire,
chosen in accordance with the provisions of The Hague Convention of
October 18, 1907, for the pacific settlement of international disputes,
and such umpire is empowered to render a final decision.

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.

2203

THE EXECUTION OF CANNON AND GROCE IN NICARAGUA

The note of the Secretary of State dated December 1, 1909, to the Nicaraguan chargé d'affaires (reprinted in the Supplement, p. 249) terminating diplomatic relations between that country and the United States has been variously regarded. A section of the press expressed the opinion that the growing feelings of confidence and good will on the part of Latin-American countries toward the United States had thereby been endangered, while certain criticisms in England were calculated ta throw doubt upon some principles of international law which the note seems to have taken for granted.

We are not here concerned with the question of diplomatic policy involved in the action taken. The language of the note was perhaps more direct than may have been essential, but few will venture to assert that the provocation was overestimated.

What interests us most, however, are the questions of international law involved in the execution of the two American citizens, Cannon and Groce, who, we assume, were duly commissioned officers in the service of the revolutionary party.

It is often asserted that when a citizen takes up arms against a nation with which his own state is at peace, he completely forfeits his allegiance and his right to protection. Certain proclamations issued by our Presidents during the Cuban revolutions of the forties and fifties warned all citizens that when aiding the insurgents they must not expect "interference of this Government in any form on their behalf, no matter to what extremities they may be reduced." That formula has since been abandoned. The relation of the individual to his native state is a status created by public law, and his temporary allegiance to another government or de facto political body will not so ipso divest him either of citizenship or the right to protection. Furthermore, a nation owes no duty to a foreign state to take affirmative steps to prevent its citizens, quâ individuals, from enlisting in a hostile army. It may well be that the citizen becomes thus guilty of disloyalty to his native state, but if his noxious acts have been repressed with undue severity by the foreign state, it lies with the native state alone to judge how far its subject has lost the right to protection.

The tendency of established government is to treat all rebels as outlaws, but though the Hague rules do not apply to bodies without belligerent character, there has been a gradually crystallizing body of precedents in favor of according the rights of war to individuals constituting part

of an organized force representing the popular will of at least a definite portion of the territory of the state. Hall says that "as soon as a con siderable population is arrayed in arms with the professed object of attaining political ends, it resembles a state too nearly for it to be possible to treat individuals belonging to such population as criminals." Our Supreme Court has reached a similar result in the case of the Three Friends, by recognizing war in the material as well as in the legal sense and distinguishing the former from mere lawlessness. In the present case, President Taft, in his last annual message, referred to the revolution as being" in control of about half of the Republic."

Of the right to inflict penalties and imprisonment upon persons captured in the forces of an armed uprising there would seem to be no doubt. But the claim to exercise harsher measures against aliens than against natives on the ground that they have no legitimate interest in the conflict is more than compensated by the fact that, owing no allegiance. their conduct cannot be denominated treasonable. To execute them after barbarous cruelties (as appears from the note to have been reported to the Secretary of State in the present instance) and without trial, or after a trial constituting a bare formality, is in derogation of those rights. which the United States Government has, on past occasions, successfully made the subject of international claims, notably under the convention with Mexico of 1868.

It has been broadly recognized that privateersmen in the service of an insurrectionary force may not be dealt with as pirates. It would appear to be a logical extension to apply a similar rule to distinguish revolutionary from bandit forces in hostilities upon land.

THE UNITED STATES AT THE HAGUE COURT OF ARBITRATION

The North Atlantic Coast Fisheries Arbitration

As the JOURNAL goes to press the long standing dispute between Great Britain and the United States concerning the correct interpretation of the Treaty of 1818 is being submitted by American and British counsel to the definitive determination of the Permanent Court of Arbitration, composed of M. Henri Lammasch of Austria, president, M. Luis M. Drago of Argentine, Mr. George Gray of the United States, Sir Charles Fitzpatrick of Great Britain, and M. A. F. de Savornin Lohman of Holland. The court thus constituted met at The Hague, June 1, 1910.

« ZurückWeiter »