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waters available to sea-going vessels, the development of hydro-electric power, etc. The Legal Adviser of the Department of State, in a memorandum dated February 10, 1939,45 expressed the opinion that an arrangement between the United States and Canada concerning the project could be effected by a simple agreement between the two countries and approval of the agreement by legislation in the United States and in Canada. The negotiations have progressed to the point where an agreement is about ready to be signed, but before proceeding to signature it is thought desirable to ascertain whether the Attorney General concurs in the view that the purposes may be accomplished in this fashion.
It is not necessary here to enter into a discussion of the treatymaking power or of the power of the President to enter into executive agreements with foreign countries. It is sufficient to say that a very large number of such agreements on various subjects have been entered into from time to time throughout the history of this country. Some of them have been specifically authorized by acts of Congress; others, though not specifically authorized, have been within the framework of acts of Congress; and still others have been concluded without enabling legislation on the subject.
Following the failure of the Senate to approve a treaty for the annexation of Texas,46 the annexation was accomplished by a joint resolution approved on March 1, 1845 (5 Stat. 797), after passage by a simple majority vote of the two houses of Congress. Likewise, in the case of Hawaii, a treaty of annexation had been signed on June 16, 1897,47 and approved by the Hawaiian Legislature, but there was not sufficient support in the United States Senate to obtain approval by a two-thirds vote. Thereafter Congress passed a joint resolution to accomplish the same purpose, which was approved July 7, 1898 (30 Stat. 750).
Of interest in this connection is action by Congress with respect to the construction of bridges across the international boundary–United States and Canada, subject to similar authorization by Canada. For example, Public Resolution No. 117, 75th Congress, 3d session, created the Niagara Falls Bridge Commission and authorized it to construct and operate bridges across the Niagara River, subject to “the approval of the proper authorities in the Dominion of Canada.” (52 Stat. 767.)
On November 11, 1927, President Coolidge issued a presidential license to the Detroit-Ontario Subway, Inc., authorizing the company to construct, operate, and maintain a tunnel from a point in or near Brush or Randolph Street in the City of Detroit to a point on the international boundary line under the Detroit River. It is under
stood that corresponding authorization was given on the part of Canada by an Order in Council.
The improvement of the Great Lakes-St. Lawrence Basin for navigation and other purposes would seem clearly to fall within the commerce clause of the Constitution, giving the Congress the authority to regulate interstate and foreign commerce. Where the undertaking with respect to interstate and foreign commerce involves boundary waters over which this country does not have exclusive jurisdiction, there would seem to be no reason why the Congress should not within its Constitutional power enact legislation, contingent upon a like legislative enactment in the other country, signifying its approval of a joint undertaking signed by both Governments. The signing of an agreement by the two Governments would be but a convenient way of bringing about in advance of legislative enactments a joint understanding by the two Governments on a complicated question which could hardly be handled without such advance understanding. The agreement would contain provisions which might otherwise be incorporated in a treaty, but would not take the treaty form or follow the treaty process. It would not constitute a binding international agreement until Congress and the Canadian Parliament had indicated their approval.
GREEN H. HACKWORTH
711.42157 SA 29/1834
The Attorney General (Jackson) to the Secretary of State
WASHINGTON, March 14, 1941. MY DEAR MR. SECRETARY: I have your letter of March 13 and concur in the conclusion reached by your Legal Adviser that it is legally inobjectionable so far as this country is concerned for the executives of the United States and Canada to enter into an agreement regarding the Great Lakes-St. Lawrence Deep Waterway project conditioned for its effectiveness upon the subsequent enactment of necessary legislation by the Congress and by the Canadian Parliament.
If an agreement is executed and approved in this manner, its provisions would be binding upon the United States as respects Canada. Respectfully,
ROBERT H. JACKSON
711.42157 SA 29/1821
Unperfected Agreement Between the United States and Canada
Regarding the Great Lakes-St. Lawrence Waterway Project, Signed at Ottawa, March 19, 1941
The President of the United States of America and His Majesty the King of Great Britain, Ireland and the British dominions beyond the Seas, Emperor of India, in respect of Canada, have decided to conclude an Agreement in relation to the utilization of the water in the Great Lakes-St. Lawrence Basin and to that end have named as their respective plenipotentiaries: The President of the United States of America: Jay Pierrepont Moffat, Envoy Extraordinary and Minister Pleni
potentiary of the United States of America to Canada; Adolf Augustus Berle, Jr., Assistant Secretary of State;
Leland Olds, Chairman of the Federal Power Commission; His Majesty the King of Great Britain, Ireland and the British dominions beyond the Seas, Emperor of India, for Canada : The Right Honourable W. L. Mackenzie King, Prime Minister,
President of the Privy Council and Secretary of State for
PRELIMINARY ARTICLE For the purposes of the present Agreement, unless otherwise expressly provided, the expression:
(a) “Joint Board of Engineers” means the board appointed pursuant to an agreement between the Governments following the recommendation of the International Joint Commission, dated December 19, 1921;
(6) "Great Lakes System” means Lakes Superior, Michigan, Huron (including Georgian Bay), Erie and Ontario, and the connecting waters, including Lake St. Clair;
(c) "St. Lawrence River” includes the river channels and the lakes forming parts of the river channels from the outlet of Lake Ontario
to the sea;
(d) “International Section” means that part of the St. Lawrence River through which the international boundary line runs;
(e) “Canadian Section" means that part of the St. Lawrence River which lies wholly within Canada and which extends from the easterly limit of the International Section to Montreal Harbour;
(f) “International Rapids Section" means that part of the International Section which extends from Chimney Point to the village of St. Regis;
(9) "Governments” means the Government of the United States of America and the Government of Canada;
(h) "countries” means the United States of America and Canada;
(i) "Special International Niagara Board” means the board appointed by the Governments in 1926 to ascertain and recommend ways and means to preserve the scenic beauty of the Niagara Falls;
(1) “deep waterway” means adequate provision for navigation requiring a controlling channel depth of 27 feet with a depth of 30 feet over lock sills, from the head of the Great Lakes to Montreal Harbour via the Great Lakes System and St. Lawrence River, in general accordance with the specifications set forth in the Report of the Joint Board of Engineers, dated November 16, 1926.48
ARTICLE I 1. The Governments agree to establish and maintain a Great LakesSt. Lawrence Basin Commission, hereinafter referred to as the Commission, consisting of not more than ten members of whom an equal number shall be appointed by each Government. The duties of the Commission shall be:
(a) to prepare and to recommend plans and specifications for the construction of works in the International Rapids Section in accordance with and containing the features described in the Annex attached to and made part of this Agreement, with such modifications as may be agreed upon by the Governments;
(6) upon approval of the plans and specifications by the Governments, to prepare a schedule
allocating the construction of the works in the International Rapids Section on such a basis that each Government shall construct the works within its own territory or an equivalent proportion of the works so approved;
(c) to approve all contracts entered into on behalf of either Government for the works in the International Rapids Section;
(d) to supervise the construction of the works and to submit reports to the Governments from time to time, and at least once each calendar year, on the progress of the works;
(e) upon satisfactory completion of the works, to certify to the Governments that they meet the plans and specifications drawn up by the Commission and approved by the Governments;
(f) to perform the other duties assigned to it in this Agreement.
2. The Commission shall have the authority to employ such persons and to make such expenditures as may be necessary to carry out the duties set forth in this Agreement. It shall have the authority to avail itself of the services of such governmental agencies, officers and employees of either country as may be made available. The remuneration, general expenses and all other expenses of its members shall be regulated and paid by their respective Governments; and the other expenses of the Commission, except as provided for under Article III, paragraph (b) of this Agreement, shall be borne by the Governments in equal moieties.
Report of Joint Board of Engineers on St. Lawrence Waterway Project, November 16, 1926 (Ottawa, F. A. Acland, 1927).
3. The Governments agree to permit the entry into their respective countries, within areas immediately adjacent to the Niagara River and the International Section to be delimited by exchange of notes, of personnel employed by the Commission or employed in the construction of the works, and to exempt such personnel from the operation of the immigration laws and regulations within the areas so delimited. In the event that the Commission, pursuant to the provisions of paragraph 1 (6) of this Article, allocates to either of the Governments the construction of works, any part of which is within the territory of the other Government, the latter Government shall make provision for the according, within the area in which such a part is situated, of such exemption from customs, excise and other imposts, federal, state and provincial, as may be reasonably practicable for the effective and economical prosecution of the work. Regulations providing for such exemptions may be settled by the Governments by exchange of notes.
4. The Governments shall, by exchange of notes, prescribe rules and regulations for the conduct of the Commission. They may by the same means extend or abridge its powers and duties; and reduce or after reduction increase the number of members (provided that there must always be an equal number appointed by each Government and that the total number of members shall at no time exceed ten); and, upon completion of its duties, the Governments may terminate its existence.
ARTICLE II The Government of Canada agrees:
(a) in accordance with the plans and specifications prepared by the Commission and approved by the Governments, to construct the works in the International Rapids Section allocated to Canada by the Commission; and to operate and maintain or arrange for the operation and maintenance of the works situated in the territory of Canada;
(6) to complete, not later than December 31, 1948, the essential Canadian links in the deep waterway, including the necessary deepening of the new Welland Ship Canal and the construction of canals and other works to provide the necessary depth in the Canadian Section of the St. Lawrence River; provided that, if the continuance of war conditions or the requirements of defence justify a modification of the period within which such works shall be completed, the Governments may, by exchange of notes, arrange to defer or expedite their completion as circumstances may require.
The Government of the United States of America agrees:
(a) in accordance with the plans and specifications prepared by the Commission and approved by the Governments, to construct the