-

A CQNSQWTFON OF THE WELEY-DORDERO
ACT OF 2:954 AS AN
[ETERNATEONAL AGREEMENT

Thesis for flu Degree of M. A.
MECWGAN STATE UNEVERSETY

fianfid .5. Evans
1958

~—

LIBRARY

Michigan St?”
University

 

A CONSIDERATION OF THE WILEY-DONOERO ACT OF I95h
AS AN INTERNATIONAL AGREEMENT

By
DONALD J. EVANS

AN ABSTRACT
Submitted to the College of Business and Public Service
Michi an State Universit of A ricuiture and
App! ed Science in part al fu fillment of
the requirements for the degree of

MASTER OF ARTS

Department of PoIItIcal Science
I958

t W / $47”—

‘r

Donald J. Evans

The research was designed to supply infonmation on the
problem of fashioning instruments of international agreement.
The focus of study is on the Wiley-Bondeno Act of l95h, the
instrument providing for the St. Lawrence Seaway Project in the
United States. International agreements between the United
States and Canada are examined as they relate to the Wiley-
Dondero Act.

The thesis is divided into five chapters. The first
chapter traces the history of attempts to accomplish the St.
Lawrence Seaway Project. The second chapter is concerned
with the legal bases for the proposed treaties of the l930's,
the i9lil Executive Agreement and imlementing'legislation,
and the use of concurrent legislation. This chapter treats
both executive and legislative actions in the formation of
international agreements.

The third chapter is an analysis of the St. Lawrence
Seaway Project first as an international issue and secondly
as a domestic issue. From this analysis two conclusions aie
fanned: The United States Senate waived its treaty preroga-
tive by permitting the Project to be accomplished through
the use of concurrent legislation, and the Wiley-Bondero Act
is only domestic legislation despite the attempts to make it
an international agreement.

The fourth chapter presents possible United States and
Canadian developments in the St. Lawrence River with emphasis
upon the all-Canadian route. The fifth chapter gives the
author's conclusions and possible courses of action available

to the United States if this country is to share with Canada
the control of shipping on the Great Lakes.

A CONSIDERATION OF THE NILEY-DONOERO ACT OF I95h
AS AN INTERNATIONAL AGREEMENT

BY
DONALD J. EVANS

A THESIS
Submitted to the College of Business and Public Service
Michigan State University of A riculture and
Appl ed Science in part el fu fillment of
the requirements for the degree of

MASTER OF ARTS

Department of Political Science
l958

Approved S;E$‘c)24;' // SEE; 6;:;:;;Z;=T‘"’—

TABLE OF CONTENTS

PREFACE . . . . . . . . . . .
I. INTRODUCTION . . .
The Treaty Attempts .

The Executive Agreement Attempt .

The Concurrent Legislative Attempt.
ii. BASES FOR THE SEAWAY ALTERNATIVES .

The Treaty Method .

The Executive Agreement Method. . . .

III. THE SEAWAY PROJECT--TWO POINTS OF

An International Issue.
A Domestic Issue. . .
IV. THE ALL-CANADIAN ROUTE.
V. CONCLUSION. . . . . .
BIBLIOGRAPHY. . . . . . . . .
APPENDIX, . . . . . . .

VIEW.

l2
l3
l6
l6
20

. 29

29
35

. S3

6i
68

. 76

PREFACE

Several reasons prompted the author to undertake this
study of the Wiley-Dondero Act of l95‘i. Primarily, It was
the desire to study an area of international relations close
to the State of Michigan. Since Canada was across the Great
Lakes, a study of some aspect of American-Canadian relations
appeared promising. Inquiry was made into the St. Lawrence
Seaway Project. Michigan would benefit from the proposed
Seaway, probably more than any other state. A project so
large in scope as the Seaway might yield some interesting,
international problems.

This work is a study of one international problem crea-
ted by the Wiley-Dondero Act. This problem was how concurrent
legislation could be made an international agreement. Since
domestic legislation created the Seaway, might such legis-
lation be given wider application In some future agreement
between the United States and another nation?

This study has been limited to a particular area of
Investigation, namely, the negotiation stages of Seaway leg-
islation and agreements. Further limitation has been made by
restricting the study to these stages relating to the legal
basis for agreements, the question of senatorial waiver of
Its treaty power, and the possibility of an all-Canadian
seaway. Outside the scope of investigation are the economic
values of the Seaway, the engineering problems, and the
political and social consequences of ocean-going ships upon

the Great Lakes.

The author wishes to express his gratitude to Doctor
Lewis J. Edinger and other members of the Department of
Political Science for their encouragement and helpful
criticism during the preparation of this thesis.

He Is also Indebted to Mr. Raymond F. Stellar, Engineer,
St. Lawrence Seaway Development Corporation, who suggested
the direction in which this work followed; to George S. Vest,
Canadian‘Desk, U. S. Department of State; to the staff of
the Library of Congress for their aid in obtaining many of
the docunents; and to my wife, whose patience during the

preparation of this thesis was a work of love.

CHAPTER I 5
INTRODUCTION

The international relationship between the United States
and Canada Is unique for several reasons. First, a discussion
of the "serious" problems facing the United States in world
affairs usually is directed towards Europe, the Middle East,
or Asia. Infrequently is the discussion directed towards
Canada. The word "serious" is rarely used to describe the
present diplomatic relations between America and Canada. The
past has often seen tensions between the United States and
Canada, but the present relations are not troublesome to
either party.

Another unique feature is that both countries have the
same English heritage and both have developed British forms
of political democracy. The cannon heritage is not the only
feature which has lessened strains between the two nations.
They also have mutually beneficial economic ties.

Perhaps the most frequently mentioned fact evidencing
the splendid relations between the United States and Canada
is that between these two countries exists the longest un-
guarded boundary in the world. The only armaments, provided
by the Rush-Bagot Agreement of l8l7, are three gun boats
For Canada and three for the United States upon the Great
Lakes. Such a boundary is in sharp contrast to the boundaries

0‘ most pairs of nations, which place steel against steel.

Many disputes between the two countries have had

to do with boundary questions, which have been settled by

treaty. Between l7l0 and I929 fourteen important treaties
were negotiated between the United States and Great Britain,
who controlled Canada's foreign affairs until l93l when Canada
became independent by the Statute of Westminster. The tree-
ties with Great Britain were primarily concerned with water-
ways and boundaries. According to Samuel W. Boggs, whose
study of boundaries has made him an authority in the field,
the United States-Canadian boundary is "now one of the best-
inarked frontiers in the world."'

Since about l9ll the United States and Canada have been
concerned with the development of a St. Lawrence Seaway. The
Seaway, as it is now planned,‘will consist of a series of
locks and dams between Montreal and Lake Ontario, a distance
of approximately IBS miles. A secondary consideration is the
deepening of existing channels throughout the entire Great
Lakes-St. Lawrence system, including the twenty-seven mile
welland Canal. Such a system will allow'most sea-going ships
to enter and sail the Great Lakes. The two governments hope
that a huge economic boom in the entire Western United States
and Canada will result from such a system. Former President
Franklin Delano Roosevelt stated his opinion in these words
in l9lil, “I know of no single project of this nature more

important to this country's future In peace or war."2

 

1Samuel W. 809 s, International Boundaries, (New York:
Colunbia University ress, , p, SET——

. 2U.S., President l933-h5 (Roosevelt), Communication,
Senate Doc, No. 63. I9Ai, p. 2.

7

Several methods were attempted In the efforts to launch
this Important project. The method which finally launched
the St. Lawrence Seaway was that of concurrent legislation.
in this case the concurrent legislation was legislation,
passed by the Congress of the United States and the Parlia-
ment of Canada, which provided for the building of the Seaway
by both nations. in the United States the enabling legisla-
tion was the Niley-Dondero Act of May l3, l95h.3

To consider how the bilateral constructed Seaway was
accomplished, it is necessary to examine the history of
other attempts to accomplish the same project. These
atteimts “Y be grouped Into three periods.

Liza; m Astat .--During the first period, from
about l928 to l9li0, attempts were made to accomplish the
Seaway by use of a treaty which was based on the Boundary
waters Treaty of i909.“ The purpose of this treaty was
twofold: to settle questions pending at the time the Treaty
was written and to permit the settlement of future, frontier
problems.5 The High Contracting Parties, the United States
and Canada, agreed In Article III that any use of the
boundary waters affecting the natural level or flow of

boundary waters on the other side of the line could not

 

3ii.‘s., Statutes 9;: Large, vam, 92.
“0.5.. Statutes g; Lar , xxxw, Part 2, 2MB.
5Robert A. Falconer, The United States As a Neighbour

from :1; Canadian Pglnt 2t View, (fondant GmbTPT e n vers t
II'BSS, Igzg’g pa e da Y

be made except by authority of the two parties with the
approval of the international Joint Commission created
under Article Vii of this same treaty.6

The International Joint Commission so created is
composed of six commissioners, three from each country.
Article VIII sets forth the jurisdiction of the IJC.

Under Article ix differences between the United States
and Canada may be submitted to the NC for examination
and report.7

In July, l9l3 Senator Townsend of Michigan proposed
a resolution calling for an agreement concerning navigation
improvements in the international boundary.8 With this
resolution there began a series of actions culmunating in
the treaty between the United States and Canada of July l8,
l932.

After World War I the IJC made an investigation and
report of the situation under Article ix of the l909 Treaty.
The NC reconmended on December I9, I92l that a treaty be
made between the two countries for the improvement of navi-
gational facilities between Montreal and Lake Ontario.9
interest in a treaty continued. In a note dated April l3,

I927 Frank B. Kellogg, Secretary of State, declared that the

 

5u.s.. Statutes 2; Large, XXXVI, Part 2, zuua.
7ibid.

8u. 5., Congressional Record, 63rd Cong., lst Sess., L,
Part 3. 2367.

9U. S Senate or of he International Jo nt tCom-
mission, 67th Cong.: ind Siss.,£S;natec . 9 .'—-

United States was willing to enter into negotiations with a
view of framing a convention regarding the subject matter re-
viewed by the IJC.‘0 A year later Mr. Kellogg again stated
the need for a treaty.II

The Canadian Government was also considering a treaty
for the St. Lawrence Seaway. The Report of the Canadian
National Advisory Committee appointed on May 7, l92h to advise
the Government on the wider aspects of improving the St. Law-
rence Waterway, declared that a treaty should be regulated and
governed by existing treaties.‘2

The United States note of April l3, i927 was answered
by Canada on January 3i, l928. The answer suggested a delay
in construction in the International Rapids Section until the
Ontario Province could absorb'more of the hydroelectric power
to be created by the project.‘3 A U.S. note of March l2, I928
proposed a discussion of the problems.” On April 5, i928
the Canadian Legation again emphasized that power development
should not run ahead of demand.'5 The U.S. suggested that
the treaty negotiations run concurrently with the engineering

discussions.‘6 On September 2, I930 the U.S. Minister to

 

IOCanada, Department of External Affairs, §£, Lawrence
Waterway Prolect (Ottawa: I928), pp. 5-6.

"121g.. pp. lz-lh.
‘?ig;g.. p. 2i.
'312;g.. pp. 7-l2.
WM” pp. iz-iti.
‘5jglg.. pp. I5-l6.
'919;g.. pp. l6-l7.

l0

Canada declared that his country was ready to go ahead with
the development of the Seaway.l7

A year later Canada expressed her willingness to dis-
cuss the Seaway by diplomatic channels rather than by a spec-
ial commission.‘8 The final report of the Joint Board of
Engineers, announced on April 9, I932,'9 served as the basis
for negotiation of the proposed treaty. On July l8, l932 the
United States and Canada signed a treaty which provided for
both navigational and hydroelectric developments.20

The treaty was sent to the United States Senate. The
Senate Committee on Foreign Relations voted I5 to S for
approval of the treaty with certain reservations respecting
the private diversion of water on the St. Lawrence River.2‘

The Senate debated the treaty from January l2 to March lh,
I93“. The treaty was defeated by a roll-call vote of A6

 

”Canada, Department of External Affairs, Corres ondence
and Documents Reiatin to St. Lawrence Dee Wbterwa Treaty,

E¥EW a a a onvent on “.!22 n3 ana §§o iver an Keno ami
ver (Eon 3Eae ro e was an 'ExTorg L Electr i——T'Pw wer,
ttawa: .7 .

'au. 5.. President, l933- us (Roosevelt), Text dof the

Treat Be ween the United States sand Canada, sf ned a 'WEsh-
In ton Ju I I8,1tatm nt 0 he JFresiazn an fl'éfis
artment ALT—State; ana Re ort L rte oar Lt n
S0 tate

neers 0 April 5, partmentw o
aghington: . . Government Printing Office, I932).

'9ibid.
_ zoibid.

2IUJS. COn ressional Record 73rd Con . Special Sess.
I933, LXXVII: F‘s—W , . ' g ' '

 

ll
ayes, #2 nays, 5 not voting.22 Lacking the necessary two-
thirds vote for passage the treaty was never again brought
to a vote.

However, there were new treaty proposals. The negotia-
tion of a new and more comprehensive treaty was urged by the
American Minister to Canada on February 25, I936.23 Cordell
Hull, Secretary of State, sent a letter of transmittal on May
28, I938 to the Canadian Minister to the United States, Sir
Herbert Marler. The letter contained "an infonmal and tenta-
tive draft of a proposed general treaty establishing whet Is,
in effect, a broad plan covering the future utilization of the
Great Lakes-St.Lawrence Basin to assure the maximum advantages
to both peoples."2" A reply dated December 26, I939 by Loring
C. Christie, Canadian Minister, expressed the desire for an
informal meeting to iron out details.25 Secretary Hull re-
plied on January 3, l9h0 the Messrs. Berle and Hickerson of
the Department of State and Mr. Leland Olds, Chairman of the
Federal Power Coinnission, would meet with him on January sev-

enth.26 Negotiations continued through correspondence.

”0. 5., ressional rd, 73rd Con ., 2nd Sass.
i931i Lxxvm ,‘FJWEaI-t ‘E73‘" 9 '

23Canada, Degartment of External Affairs, Correspondence
and Documents, I93 .

 

...., “sari. taming; sismukzifzzr‘esz—zum— ms“
WT—-+l§3'B—T9'5T,'T 'TOttawa: 1.117315. -—-—
25%" Po 33.
26121.9... 9. 3h.

i2

On March 5, l9hl Canada Inquired whether the I936 and
I938 proposals should be explored or set aside because of the
war effort.27 The U.S. answered that funds and manpower should
be made immediately available for the completion of the Seaway.28
World war II acted as a catalyst to the negotiations. Immediate
steps were taken to provide for expansion of navigational facil-
ities upon the St. Lawrence River and for the creation of addi-
tional hydroelectric power. The result of these steps was the
conclusion of an executive agreement dated March l9, l9hi,
which provided for the construction of works In the International
Rapids Section of the St. Lawrence River and for completion of
navigation Improvements In other parts of the Great Lakes-
St. Lawrence System.29 The Agreement, subject to approval
by reciprocal legislation, was a departure from attempts to
build a Seaway by the treaty method.

1119, Executive Agreement Mu-The second period
of attempts to accomplish the Seaway was from March I9, I9AI
to November A, I952. During this period a number of bills
were proposed In both the U.S. Senate and the House of Repre-

sentatives for the approval of the l9hl Executive Agreement.3°

 

27ibid.. pp. 38-39.

28ibid., pp. 39-42.

29D. 5. Con ressional Record 77th c
on; Ist Sess.
LXXXVI i I Pa rt‘B'Z‘q’Z'mT— —" ' '

30U. 5., Congress, Senate, Committee on Foreign Relations,
_5.. ngrence Manual: 5.9%P%ilationr of Documents Ln the
reat La es eawa [reject an orre ate T£___ower v Ior
r Cong. 2n 3 Sess., enate *Doc. resente yr
I955, pp. I7-I8 and I75- -200. A chronoiogy of legis ative

attempts to approve the agreement Is given.

icy.

l3

‘_I’_i3_e_ Concurrent Legislative Attempt.--The third period
of attempts to build a Seaway began with the Canadian
announcement of November, I952 that the UM Agreement was
obsolete and therefore was to be terminated.“ As a con-
sequence of this Canadian action, Senator Wiley of Wisconsin
introduced a bill, S. 589, on January 23, I953, authorizing
completion of the project without reference to the l9lil
Agreement. Bill S. 589 was one of a nunber of bills which
authorized the completion of the project without reference
to the l9lil Agreement.

On June l8, l953 a new bill, S. 2l50, was introduced
by Senator Alexander Wiley. This bill resulted in the Wiley-
Dondero Act of May l3, I954. The Act created the St. Lawrence
Seaway Development Corporation to construct navigation
facilities in the international Rapids Section. .Senator
Wiley stated that four developments had tranSpIred before
the introduction of S. ZISO, which no longer permitted the
Seaway project to be considered In the form of a treaty or
executive agreement. The new developments were (I) the
Canadian note of November 1i, I952, (2) the approval by the
International Joint Cornnission on October 29, I952 of a new

cost. allocation plan, (3) the Canadian plan to build the

—‘

3‘U.S., Congress, House, Committee on Public Works,

R ort, 95 5. Res. 2l50, The _S__t. Lawrence Seawa Reports
No. IZIS, 83'r d—Eng” nd Sess.,T9'5'!i——— 85- 8': and U.S

President, I945- -53 (Truman), Communication from t_I_'i_e President
of the United States, House Doc. No. 528, 82n8 Cong.,
nU-Cong., Ina Sess., i952.

 

lh

Seaway phase of the project entirely within the boundary of
Canada, and (h) the amending by the Power Authority of the
State of New York of its application to conform with the
new plans of the International Joint Commission for building
the power project in the United States.32

The four new developments caused the Congress of the
United States to consider bill S. 2I50. The Committee on
Foreign Relations approved S. 2l50 by a l3 to 2 vote on June
I6, I953.33 President Eisenhower urged the Congress to
approve U.S. participation In the St. Lawrence Seaway Project3h
From January I3 to 20, I954 the Senate debated S. 2l50.
Approval came on January 20 by a vote of SI to 33.35 The
House Committee on Public Works voted 23 to 6 in faVor of
S. ZISO with minor amendnents on February 336 and reported
‘the bill to the floor on February I9.37 The House of Repre-
:sentatives voted on May 6 in favor of the bill, 2hl to I58.38

‘ j

32Alexander Wiley, "The St. Lawrence Project Will Be
Eiuilt', " The Heartland, I (Summer, I953), pp. 39-40.

33U. 5., Congress, Senate, Committee on Foreign Relations,
or on S. Res. 2i 0, The St. Lawrence Seaway, Report No.
fii, §3rTCong., Ist ess., _I§§3.

3“” 5 Congress, House, Committee on Public Works,
M. 9__n _s.. Res. 2150, 1954’

35U S.

Con ressional Record, 83rd Cong., 2nd Sess.,
ISSh, C, Part I, p. 525.
36

U. 5., Con ressional Record, 83rd Cong., 2nd Sess.,
I95h, C, Part 2, §5§5.

37U.S., Congress, House, Committee on Public works,
Report, 931;. _R___es. _2____l50, I951}.

38U.S., Congressional Record, 83rd Cong., 2nd Sess.,
I9Sh, C, Part 5, 6I60.

 

IS
The bill was signed by President Eisenhower and became Public
Law 358 of the 83rd Congress on May l3, l95h.39

Thus, after almost a half century of negotiation and
attempted legislation a St. Lawrence Seaway bill became law.
The attempts to provide an accomplishing instrument had
effects upon American constitutional practice. The effects
related to the conduct of foreign affairs by the executive
and legislative branches of the national government. Molded
by two generations of changing ideas in the executive and
legislative branches, fluctuations were bound to exist in the
various proposals envisioning ocean-going ships passing
through the great waterway dividing the United States and
Canada.

The friendly attitude that existed between these two
Icountries Influenced the final method by which the Seaway
teas brought into being. This same friendly attitude presum-
ably will continue to affect the future control of the Seaway.
1rhere is no guarantee that the friendly relations which were
t:he basis for the concurrent legislation will prevent Canada
1=rom proceeding in this area alone. Without an explicit
tailateral guarantee covering the St. Lawrence system, Canada
could build an all-Canadian Seaway and accomplish her

national interest at the expense of the United States.

39U.S., Statutes at Large, LXVIII, 92.

l6

CHAPTER II
BASES FOR THE SEAWAY
ALTERNATIVES
The Treaty Method

Several questions may be raised as a result of two
generations of negotiation and attempted legislation for the
St. Lawrence Seaway: Why was the treaty method attempted?
Why was the treaty method replaced by the executive agreement
method? Why was the executive agreement method replaced by
concurrent legislation? What were the legal bases given
for the above alternatives? What alternatives were available
to the executive and legislative branches for accomplishing
the Seaway? Was the accomplishing method the result of
executive and legislative co-operation? An attempt to
answer these questions is set forth in this chapter.

The definition of a treaty is established. However,
the subject matter and the uses to which the treaty may be
put do not appear to be settled. "In the jurISprudence of
the United States . . . the tenn 'treaty' is properly to be
limited, although the Federal statutes and the courts do
not always so confine it, to agreements approved by the

Senate."l‘o

 

quohn B. Moore, "Treaties and Executive A reements"
Political Science Quarterly, XX (September, I905 , 388.

I7
Green M. Hackworth has noted in his Digest gfi,lnter-

national Law that:

The Constitution of the United States provides
in article Il, section 2, that the President shall
have power "by and with the Advice and Consent of
the Senate, to make Treaties." The term "Treaties"
as there used Includes any international a reement,
regardless of the tenmino ogy by which it 5
described, if it is of such a nature as to require
the advice and consent of the Senate to ratification
by the President.

Additional support for the definition of a treaty, as an
agreement which requires the advice and consent of the Senate,
has been given by Myres S. McOougal and Asher Lans.

Just as often these same writers and speakers
fail on the one hand, to make certain necessary
distinctions between the very different steps, or
governmental activities, that are involved in the
total process of "makin " and International agree-
ment and, hence, fail a so to make necessary dis-
tinctions between the sometimes very different,
appropriate constitutional bases for each of the
different steps involved In the total process...
By common practice under that law, the term
"treaty" is used to refer to every agreement whether
written or verbal, important or unimportant, with
one or more forel n nations which prior to
ratification by t e President receives the
consent of two-thirds of the Senate, and which is
never submitted figr approval to the House of
Representatives.

Therefore, it may be concluded that a treaty is any agree-
ment made with another nation*which receives the consent of

the Senate and is thereafter natlfled by the President.

 

M (Washington: U.S. Government Printing Office,
'91’3). v9 '0

“2”Treaties and Congressional-Executive or Presidential
A reaments: Interchangeable Instruments of National Policy",
T e Yale Law Journal, LIV (March, I995). I95. I97-l99.

I8

The treaty method was used in I932 in an attempt
to create the project. During the period of treaty
negotiation from about l9II to I932 no justification
\was given for using the treaty as the accomplishing
instrument to the exclusion of any other method. The
treaty method was accepted as the proper method. Though
Senator Townsend of Michigan prOposed in l9ll only an
agreement concerning navigation improvements, the
negotiations following his prOposaI were concerned with
a treaty to the apparent disregard of all other methods.
However, whether existing treaties or a new treaty was
necessary in order to build the seaway was of concern to the
Canadian National Advisory Committee.“3

Justification for the treaty as tgg.method of

inmnimentation did not appear until an alternative to
‘the treaty method was proposed to the Congress of the
lJnited States in the form of the Executive Agreement of
I194I.

The first evidence of an alternative method to a treaty
avas given by Adolf_A. Berle, Jr., Assistant Secretary of
State. He testified on June I7, I9l+l that agreement had
loeen reached by a group of experts in the Department as
early as I932 that concurrent or reciprocal legislation was

a possible alternative method to the treaty.‘Ill Secretary

__

h3Canada, Department of External Affairs, St. Lawrence
liaterway Prolect (Ottawa: I928), p. 2I.

huU.S., Congress, House, Committee on Rivers and Harbors,
Hearings, Great Lakes-St. Lawrence Basin, XVII, l9lil, 52.

19

‘of State Cordell Hull, under whose responsibility the
proposed I936 and I938 treaties were negotiated, expressed
. the Opinion in a letter dated May 23, I9hh that it was
a question of little Importance whether the treaty method
om the executive agreement method was to be pursued.“5

The Seaway Project had been presented to the Senate
in treaty fomm before it appeared as an executive agreement.
This fact supported the argument that the treaty method was
the method of accomplishing the Seaway and formed a back-
ground for the thoughts of the Senate. Following the failure
of the treaty method the Senate was asked to consider
another method of creating the same project. For the Senate
to have agreed to a new method proposed by the executive
branch would have resulted in a diminishing of the Senate's
treaty prerogative. Precedent was established by the I932,
‘treaty to which the proponents referred throughout their

a rguments.

“5U.S., Congress, Senate, Subcommittee of the Committee
on Cannerce, Hearln 5, 95s. I385, Great Lakes-it. Lawrence
Basin, I91I5, p. 7 .

20

The Executive Agreement Method

The Constitution of the United States uses both the
words treaty and agreement. The treaty is an agreement for-
mally ratified by the Senate. Agreements made by the presi-
dent without the consent of the Senate are known as executive
agreements.

Hunter Miller has written that the term "executive
agreement is doubtless generally used to include international
agreements made by the Executive (whether under statutory
authority or not), but excluding those made by and with the
advice and consent of the Senate."l‘6 Agreement with the
above definitions has been given by Wallace McClure who
has defined a treaty as "an International act approved
by the Senate under the two-thirds rule. All other
international compacts of the United States are called
' executive agreements' ."l’7

However, while there is agreement as to the definitions
of a treaty and the executive agreement, there is an apparent
lack of agreement among the authorities as to the proper sub-
ject matter of these instruments. Charles C. Hyde looked up-

on the subject matter or character of the objectives sought

by the agreement as the factor which would determine the

¥

héHunter Miller (ed. ), Treaties and Other International
Acts of the U. S. of America (Washington. U. 5. Government

Fr int nngTce, T53”, I. 9'10

l”International Executive Agreements: Democratic Pro-

Cedure Under Line Tonst u on of'_t'_plj_e"'U"TtEn d St ta__t__es (New ork:
E<3 lumEia n versit yFress, I91“):— .3

 

2i
proper method to be used.’48 Frances B. Sayre, former Under-
Secretary of State, stated that international agreements
which involve political issues or changes in the national
policy of the United States and those_ international agree-
ments having a permanent character usually take the form of
treaties.“9

The question of whether the St. Lawrence Seaway was
the proper subject of a treaty, executive agreement or both
appeared in much of the testimony given during the Congres-
sional hearings.

The bulk of this testimony was given from I9l+l to I952
when implementing legislation for the I9lll Agreement was
considered by Congress.

The proponents of the treaty method gave several
reasons why the Seaway Project should not be accomplished by
executive agreement. Mr. Edwin Borchard, legal consultant
For the St. Lawrence Project Conference, a group opposing
the project, stated that the size of the project necessarily
called for a treaty. Incorporated into the word size were
the huge cost, the length of time for construction, a special

governmental comnission, and the obligations to be imposed

A8"Constltutional Procedures for International A reement
By The United States," Proceedln s of the American Soc et of
mternational Law, 3lst Heeting (Washington, '937), pp. 53-175.

“9"The Constitutionality of the Trade Agreements Acts,"
saglumbia Law Review, XXXIX (May, I939), 755.

 

22

at a future date.50 In addition the Minority Report on
S. J. Res. IOll stated that the treaty method should have
been employed because of the importance of the project.“
Tyre Taylor, general counsel, Southern States Industrial
(Council, declared that the use of the executive agreement
was an attempt to by-pass the constitutional requirement
of a treaty. He further stated that, should such a change
of label be allowed, a "vast additional authority will
accrue to the executive branch of the Government";2

Support for the executive agreement method of authoriz-
ing the Seaway Project came from the Department of State.
Following the rejection of the I932 treaty and the proposed
treaties of I936 and I938 the Department supported the
building of the Seaway Project under the aegis of the
executive agreement. The shift from the treaty method to
the executive agreement method came about because the
Department, as represented by Secretary of State Hull,

believed either methodwas legal. To Secretary Hull the

‘

50Edwin M. Borchard, O inlon on the uestion Whether
the St. Lawrence Waterway anU Power—Fro'ect Can Be Concluded
Executive A reement w tFI Canada 9; Reguires g‘Treaty

ashington: ress o Fyfinmms, , p. .

5IU.S., Congress, Senate, Committee on Foreign Relations,
Re ort, g_n_ S. J. Res. loll, Great Lakes-St. Lawrence Basin,
'0 E

et er with Wino—Fit Tewmmi‘f', F—T-U . ’
7§t5 Congm,75m§sfi'§ufi E- 937—‘3. ePor 0—1199

52U.S., Congress, Senate, Subcomnittee of the Comnlttee
C7>n Foreign Relations, Hearings, on S. J. Res. IOlI, I9lt6, p.

”I

 

 

23
question was of little importance in his letter of May 23,

I9hh.53 Assistant Secretary of State Adolf A. Berle, Jr.
had stated on June l7, l9hl that a group of State Department

experts in I932 were agreed that there were alternatives to

the treaty method.51'

However, there are limitations upon the substitution
of the executive agreement for a treaty. Under Secretary
of State Dean Acheson set forth some of these limitations
when he noted in l91+6 the limitations upon executive agreement
making. "The most important limitation is that the subject
matter of the agreement must be in the field of Congressional
responsibility under the Constitution."55 Mr. Acheson

eXpanded this remark by saying:

"...that whether the action of the Congress
with respect to a foreign government takes the form
of (a) authorization, (b) approval, or (c) enact-
ment of implementing authority, the substantive
result in each case is precisely the same.
Whichever method may be used, the power of Congress
to act in the matter rests upon éts delegated
powers under the Constitution."5

The Department of State believed that the Seaway

Project was such an important measure that it should have

¥

53U.S. Congress, Senate, Subcommittee of the Committee

on Conmerce, Hearings, Great Lakes-S3. Lawrence Basin, I945.
P. 75.

5“U.S., Congress, House, Committee on Rivers and Harbors,
Hearings, Great Lakes-£5. Lawrence Basin, XVII, I91“, 52.

55U.S., Congress, Senate, Subcomnittee of the Committee

on Foreign Relations Hearin s, on S.J. Res. 101:, Great gigg-
34. Lawrence Basin. 59th Cong., Tad-$355., I955,- p. 3.

56Ibid., p. thh.

24

been presented to the House of Representatives. This reason

\was expressed by Assistant Secretary Berle on June l7, l94l
\when he spoke before the Committee on Rivers and Harbors.

l progose to close this phase of the subject by
saying t at it did seem that in an Issue of this
size and of this importance, it was hardly fair to
place in the hands of the minority of one house the
ultimate decision on a measure of very great
importance to the entire country. For that reason
the agreement form wa§7selected, and it Is in that

fonm that it is here.

Mr. Hackworth, legal advisor of the Department of

State, was also concerned over whether the House of Representa-

tives would have granted the necessary funds for the Seaway.58

He viewed action by the House as necessary and proper since,
if the House passed upon the agreement, it could be reasonably
.assumed that this same body would co-operate in appropriating
‘the funds. He further reasoned that action taken by the

fhouse would be evidence to Canada that funds would be

appropriated by the House. No such evidence would have

appeared if the agreement took the form of a treaty and
was ratified only by the Senate.59 Another reason for bring-
llwg the agreement to the House was that the whole Seaway

Project was considered as a domestic project. Secretary Hull

held to this opinion. He also held that the House should pass

upon the agreement because the House would have to appropriate

t he funds .

¥

57U.S., Congress, House, Committee on Rivers and Harbors,
Hearing, Great Lakes-St. Lawrence Basin, XVII, I94l, 45.

58U.S., Congress, Senate, Subcommittee of the Committee
On Conner-ca, Hearings, mg. l§8§, I945, pp. 27-28.

59mm.

 

iiihmufifij

25

The issues involved in the project are largely

domestic rather than International.
...It therefore seemed appropriate that the House
of Representatives should have a voice in passing
on an international obligation involving so large
an appropriation of Federal funds.
To my mind It is a gugation of little importance

which method is pursue
The Department of State presented argument on February
I8, I946 to show how the St. Lawrence Seaway Project was
within the scope of the delegated powers of Congress. In his
testimony, Under Secretary Acheson stated that the Agreement
<of I94I could be accomplished because of (l) the powers
given Congress under the commerce clause, (2) the right of
Congress to legislate on financial and monetary matters, and
(3) the historical precedent established "through agreements
Ientered into by the executive branch with legislative action."6'
An added reason for using the executive agreement was
that it was permitted under the Boundary Waters Treaty of I909.
Permission was said to exist under Article XIII which pointed
‘tca such "special agreements" as that of I94I.62
Furthermore, geography influenced the Department to
canange from a treaty to an executive agreement. Mr. Acheson
\riewed the St. Lawrence Seaway system as something out of

tiae ordinary because of the geographical considerations sur-

rcaunding the Great Lakes-St. Lawrence Seaway.

k

6°lbid., p. 75.

6'U.S., Congress, Senate, Subcommittee of the Committee
gr! Sgreign Relations, Grea; Lakes-_§_t_. Lawrence Basin, I946,

62mm, p. 58.

26
Although It could not be claimed that the United
States has acquired sovereignty to or title in any
part of the Great Lakes-St. Lawrence system lying
outside of its boundaries, the rights which it has
acquired therein by previous treaties—-in recognition
of Its natural interest in navi ation in such
system by virtue of geographica consideration--
are of such special character as to lift any
agreement with Canada relating to construct on by
t e United States in connection with navigation n
such wateré3 outside of the usual class of foreign
agreement.
Canada's geographical position to the United States
was mentioned repeatedly In much of the testimony before
the Congress and in the official reports. The influence
that geography had in determining the method of agreement
.appears to have been large. As pointed out by Mr. Acheson,
geography lifted any agreement with Canada in the area
<>f the Seaway as beyond the scope of the normal agreement.
Conclusions--The failure of the Senate to pass the I932
t:reaty gave the Department of State an opportunity to present
an alternative to the Congress in the form of an executive
agreement. Opinion within the Department was that either
method was legal. Several reasons were stated by members of
tlwe Department as to why the executive agreement might replace
tiae treaty. This second alternative for building the Seaway
was not implemented by the Congress of the United States.
The termination of the Agreement by Canada in November, I953,
Provided the opportunity for a third alternative.
The third alternative for building the Seaway originated

WI th the Congress of the United States and not with the

_~

63Ibid., p. lO48.

27
Department of State. This third alternative took the form
<of concurrent legislation. Concurrent legislation in this
case meant joint action by the United States and Canada.
These two nations are to complete the Seaway construction
according to a previous plan of joint co-operation provided
by legislation enacted within each nation. Such legislation
in the United States was the Wiley-Dondero Act.

This Act provided for navigation facilities in the St.
Lawrence River. An executive order provided for the power
development.6h Thus, what had been provided in the Treaty of
I932 and the Executive Agreement of I94l was in I954 provided
by two different instruments, legislation and an executive
<>rder. Although, the navigation and power developments are
to be built concurrently, the St. Lawrence Seaway Corporation
vvill build the Seaway while the New York State Power Authority
vvill build the hydroelectric power project. Thus, what was
't<> have been built by two nations is being built by the federal
lgcavernment, the State of New York, and Canada.

Congress moved from an executive agreement with
innplementing legislation to concurrent legislation. The
transition was an easy one. The preliminary negotiations

W3 th Canada had been accomplished. The technical details of
tlae Seaway had been blueprinted. However, this third alter-
r‘Otive needed legal justification, very similar to that given

by the Department of State in support of the agreement method.

¥

6"U.S., Federal Register, XVIII (November 6, I953). 7005.

28
Refusing to implement the l94l agreement, Congress

presented an alternative justified on grounds closely
resembling those given in support of the Agreement.

Instead of an agreement based on the delegated powers of
Congress there was legislation based on the same powers.
Instead of an agreement based on the commerce clause of the
Constitution there was legislation based on the same clause.
Previously implementing legislation was necessary because
the House must appropriate the funds for the Seaway; now,
concurrent legislation was necessary for the same reason.

In place of an executive agreement stemming from Article III
<>f the I909 Treaty was substituted concurrent legislation
stemming from the same article. If, geography lifteduggy
agreement with Canada in this area beyond the scope of the

Iwommal agreement, then concurrent legislation received such

an lift.

 

29

CHAPTER III
THE SEAWAY PROJECT--POINTS OF VIEW
An International Issue

The Seaway Project may be considered from two points
of view. First, it may be considered as an international
issue: the project may be viewed as requiring a treaty even
though this was not the accomplishing Instrument. If the
project is an international issue, the passage of the Wiley-
Dondero Act by the Senate was a waiver of its treaty
prerogative. Secondly, the project may be considered
as a domestic issue: the project may be viewed as requiring
only domestic legislation which is the form of the accomplish-
ing instrument.

One reason for the Senate's failure to pass implement-
ing legislation for the l94l Agreement was that such legisla-
tion would have resulted in a diminishing of the Senate's
treaty prerogative. Previous to the use of concurrent legisla-
‘tion the executive department had sponsored implementing
legislation. Thereafter, the legislative department sponsored
<:oncurrent legislation. The passage of this legislation
supposedly resolved the waiver problem because the Senate,
yahose ratification was necessary for a treaty, was a sponsor
<>f its own legislation. The Senate's argument resolved itself.
The Senate had saved "face" by presenting Its own version
Of an accomplishing Seaway instrument.

However, while the Senate may have been reconciled,

kFlowing that It was not waiving its two-thirds rule as a

qua-ii»? 1

30

result of executive compulsion, a problem yet remained. Did
the Senate waive its two-thirds rule by passing the Wiley-
Dondero Act? If so, is this action justifiable? A brief
review of the two-thirds rule may be helpful at this point.

The two-thirds rule in this case may have been waived
by a navigation consideration. This rule was influenced orig-
inally in its adoption by two specific aims, navigation and
fisheries.65 Dissatisfaction with the_rule came after the
rejection of the Treaty of Versailles.66 Nowever, the effec-
tiveness of the rule in the rejection of treaties has not
been as effective as has been the strong opposition of
influential Senators.67 The opposition of these Senators
has resulted in the formation of other methods of accomplish-
ing what the rejected treaties were to have accomplished.
From the executive branch has come the wider use of
«executive agreements; from the legislative branch has come
the wider use of acts and joint resolution. According to
James W. Garner in "Acts and Joint Resolutions of Congress
<as Substitutes for Treaties", there is no legal reason

\Nhy the easier method may not be used.

65R. Earl McClendon, "Origin of the Two-Thirds Rule
in Senate Action Upon Treatiesz, American Historical Review,
xxxvn (July, I93”. 768. "'"‘"""

66R. Earl McClendon, "The Two-Thirds Rule in Senate
.Action Upon Treaties, l789-l90l", American Journal 2: interna-
tional Law, XXVI (January, I932), 37,

67Royden J. Dangerfield,filg Defense 9: the Senate: 5
Study _i_n_ Treaty Making (Norman: University of—Oklahoma Press,

3l

In short, the power of the President and the
Senate to regulate foreign relations is not an
exclusive power; it is only when an agreement takes
form of a "treaty", as that tenm is used in the
Constitution, that this power belongs to them.

There is no inconsistency between the authority

of the President and the Senate to regulate

foreign relations through agreements in the form

of "treaties" and the power of the President and
Congress to deal with matters of foreign policy
through legislative action. Which of the two
procedures shall be employed in a give case is

a matter of practical convenience or political
expedienc rather than of constitutional or inter-
national aw. If the procedure of treaty regulation
proves ineffective in a particular case because of ,
the constitutional impediment relative to ratification,
there is no reason of constitutional or international
law why recourse to the easier alternative or ,,
legislative action cannot be had, if the President 5'
and a majority of the two Houses of Congress so

desired as has been dogg with success on various

occasions in the past.

=;;7

 

Charles C. Hyde looked upon the expansion of Congressional
eagreement making to be of vast potentialities as now interpre-
ted under the commerce clause.6_9 It is to be remembered that
‘tiwis was the interpretation given by the Department of State.70

History yields past attempts at by-passing the treaty
method by waiving the two-thirds rule. The Canadian Recipro-
ci ty Agreement of l9ll was viewed as a waiver of the treaty

Prerogative although it was not an issue at that time.”

¥

68"Acts and Joint Resolutions of Congress as Substitutes
for Treaties," American Journal gilnternational Law, XXIX

(July, I935). uBB—"".

69Charles C. Hyde, "Constitutional Procedures for Inter-
ggt icserIall'Agreement by the United States," Proceedings, I937,
. -5 ,

7°Supra, Chap. ii, p. 25.
7iBorchard, Opinion ..., I944, p. 24.

 

32
Another attempt to by-pass the two-thirds rule was
the adoption of the Panama Joint Resolution of I943 as noted
by Herbert W. Briggs.

Even from those Senators who favored the passage
of the Panama Joint Resolution came expressions
that it should have taken the fonm of a treaty,
and that the post-war peace settlement should be
embodied in a treaty sggject to the advice and
consent of the Senate.

 

A parallel may be drawn from the justifications given
in support of the Panama Joint Resolution of I943 and the 4
Wiley-Dondero Act of I954. .i

 

HY"

The specific justifications alleged for embodying
the Panama transaction in the form of a joint
resolution instead of in a treaty were: (I) that
it involved an appropriation, and, even if a treaty
had been made, the subsequent action of both houses
of Congress would have been necessary; (2) that it
involved the disposition of property belonging to
the United States, a power given to Congress by
Art. IV, Sec. 3, of the Constitution; and (3) that
it "really" carries out certain obligations assumed
under the treaties of I903 and I936 with Panama.

However, the mere fact that legislation is necessary
to implement a treaty is not conc usive on the question
whether, In principle, the method of joint resolution
should be substituted for the treaty method
envisaged by the Constitution. Even as a matter of
expediency, there appear to have been cogent arguments
for embodying the Panama transaction in an International
agreement. Examination of the joint resolution reveals
that it seeks to impose at least two obligations of an
internayional legal character on the government of
Panama. 3

Both the Resolution and the Act were justified in place

Of a treaty because they involved an appropriation. If a

¥

72"Treaties, Executive A reements, and the Panama Joint
Resolution of I943," American olitical Science Review, xxxvn
(Angust, l943). 687.

73IbId., 688.

1m.

.IiI. ifiyflflKwhh .. I. j

33
treaty was made in either case, the Congress would have had
to make the apprOprlation: There was unnecessary danger in
twice exposing the issues to the Senate. If the issues were
decided by either a resolution or an act only one defeat
was possible and that not by a two-thirds vote of the Senate
but only by a majority vote.

Both the Resolution and the Act were justified as per-
missable under the delegated powers of the Constitution. The
‘ Resolution was based on Article IV, Sec. 3. The Act was based
on Article I, Sec. 8, the commerce clause.

Both the Resolution and the Act were justified on the
grounds that they were carrying out the provisions of a treaty.
The Resolution was related to the treaties of I903 and I936
with Panama, whereas the Act was related to the Boundary
Waters Treaty of I909, as a "special agreement," although
this treaty is not mentioned In the Wiley-Dondero Act.7h

The waiver problem did appear in the testimony relating
to the Seaway Project. The Department of State viewed the prob-
lem not as a legal question but as one of senatorial prerog-
ative which could be waived if the Senate wished to do 50.75

Senator Ferguson of Michigan posed this question to Mr.
»Borchard. "Now can a constitutional body like the Senate and

the Congress be estopped or waive its rights?" The reply

7hU.S., Statutes'g; Large, LXVIII, 92.

75U.S., Congress, Senate, Subcommittee of the Committee
on Fozgign Relations, Hearings, gg.§. g. Res. l04, I946,
p. O .

34
was that it could only be done by the "continuous disregard

of its own rights."76
A co-author of the Wiley-Dondero Act believed that it

was possible for the Senate to waive its two-thirds right.

Senator Overton. l don'tthink it is a question of
waiver altogether, but if in one instance you ratify
what is unquestionable a treaty by majority vote, and
the Senate consents to it through a majority vote of
its members in the future when another treaty is
submitted they cannot with any degree of force or
reason say, "We require a two-thirds vote in this
particular instance." The Senate of the United
States can't blow hot and cold.

afl'

*v.‘

Senator Wiley. No’hing is impossible for the Senate .{
of the United States. ‘

Conclusions.--General dissatisfaction with the two-thirds
rule appeared as a result of the Senate's refusal to ratify
the I932 Treaty. In order to avoid the rule several alter-
natives to a treaty were introduced. Two of the alternatives
were the Executive Agreement of l94l and the Wiley-Dondero
.Act of I954. The possible use of these alternatives raised
the problem of whether the Senate could waive its treaty pre-
rogative. Both the executive and legislative branches believed
‘that a waiver could be accomplished if the Senate so desired.
AAmong those who believed that a waiver was possible was Senator
Alexander Wiley of Wisconsin, co-author of the Wiley-Dondero
lxct. Thus, if the Seaway Project was an international issue,
'that is, a project necessitating a treaty, the passage of the
JRct has resulted in a waiver of the Senate's treaty prerogative,

an abrogation of the two-thirds rule.

‘

76U.S., Con ress, Senate, Subcommittee of the Committee
On Commerce, Hear ngs, 93} Res. I385, I945, p. ISI.

77IbId., pp. l5I-l52.

35

A Domestic issue

The Seaway Project may be considered as a domestic
Issue; the project may be viewed as requiring only domestic
legislation.

The Wiley-Dondero Act will bring changes to the
St. Lawrence River system: the Long Sault Canal will be
built; there will be a deepening of the navigation channel
in the open river; there will be dredging in the Thousand

‘ Island Section. These developments, together with those
In Canada, will permit ocean-going ships to enter the Great
Lakes. The Barnhart Island Powerhouse will be built to
supply the United States and Canada with additional hydro-
electric power.

The changes glven above will give to the United States
additional responsibilities in the area: shipping traffic
uvill have to be regulated in the new canal and improved
channel; tolls will be levied; and if so, the toll rates
Inust be fixed; the United States will determine which nations
they use the Seaway. These responsibilities may be imagined,
but there may also exist for the United States new additional,
lJnseen responsibilities.

With these new responsibilities there will come rights
Which the United States gains as a result of the changes and
Obligations. These may be new rights, or an extension of
Older rights. Along with changes In the obligations and
tflfie physical appearance of the St. Lawrence River system may

Izcxne changes in United States' rights in the St. Lawrence River.

36
Because the St. Lawrence River is regulated jointly
by the United States and Canada, the rights of the United
States In the river are those expressed in agreement form
with Canada. The Wiley-Dondero Act will bring changes in the
river which may affect the rights of the United States and
Canada. Thus, the problem is to determine if and how the
rights of the United States may be affected by the Wiley-
Dondero Act. As domestic legislation, the Act may not give
any new rights to the United States. However, such domestic
legislation may be its union with some international agreement
secure for the United States new rights or guarantee existing
rights in the St. Lawrence River.
This possibility, that the Act affects the rights of
the United States because it is related to some agreement or
action of the United States Government, may be considered in
five points. These five points are (I) the geographical
{aroximity and friendly relations between the United States
aand Canada,(2) the "international co-operation" proposed by
the Act, (3) the Boundary Waters Treaty of I909, (4) the use
ITHade of the international Joint Commission, and (5) the exchange
Of diplomatic notes following the passage of the Act.
Geographical proximity Egg friendly relations.--As pre-
vicusly shown the proximity of the St. Lawrence River, flowing
as it does between the United States and Canada, has played
a major role in determining the type of agreement necessary

to build the Seaway. That geography Influenced the

37
negotiations was proved by the frequent references of both
American and Canadian officials to the nearness of each
country to the other and to the political harmony between
the two nations.78 Whether such friendly cooperation
could have existed if the Seaway were built thousands of
miles from the two countries may be doubted. The problem
of distance cannot be compared in scope to the British and
French positions while negotiating, constructing, operating
and defending the Suez Canal.

Reference has been made to the friendly relations
between the United States and Canada as a reason for replac-
ing international agreements with concurrent legislation.
Senator George, Chairman of the Senate Committee on Foreign
Relations, viewed the construction of United States' foreign
relations upon friendly attitudes between nations, as one
of the major defects of the whole foreign relations program.
in public hearings on the Seaway Project, Senator George
elaborated on this theme.

What alarms me and always has alarmed me Is that
in an enterprise of such vast importance to the
United States we are not willing to negotiate a
treaty which will fix our rights and give us some
assurance that treaty rights will be respected....

I understand that Canada has always historically
been very friendly to us, and that our relations are
ver fine. But I do not think It takes an prophet
to orsee that Canada will become one of t e real

competitors of the United States in many fields of
endeavor in some remote period in the future....

78$U2ra, chap. ii, p. 25.

38

At the same time I have never been able to see why,
In a matter of such a vast project which will last
through the indefinite future we should not have a
greasy rather than a legislative act, here and in
ana a.

....When i came to the Senate we were considering
a treaty dealing with this matter which failed of
ratification. Because it required a two-thirds vote
to ratify that treaty there was then a switch over
to the legislative process, because there a bare
majorit was necessary. We abandoned, it seems to me,
the rea assurance that we might have had through
treaty negotiations, because I think It is impossible
for Canada and the United States to agree thoroughly.
I think it is possible when we look at this problem
in the long light that we ought to rely again on the
treaty rather than legislative acts....

i understand that between Canada and our Government
there has always existed, in the large sense, at least,
very amicable and friendly relations, and I hope this
always will continue, and I have no doubt it will. But
this is essentially a foreign problem because It involves
two separate governments wholly independent of each other.
When we base transactions of this kind upon the assump-
tion that friendly relations and unselfish action will
always be continued by the governments, we are doing
exactly what I think as been one of the real defects
in our whole forei n relations program. I do not think
you can safely do t, because in the long run I do
not think you can depend upon disinterested action
by any government towards another government. It is
a ways olng to be controlled by the self-interest,
in the ong run, of the two ggrties In interest or
several parties in interest.

The friendly relations mentioned above were not strong
enough to overstep the traditional practice of non-interference
by a foreign nation with the Internal affairs of another.
There was no official Canadian attitude towards the Wiley Bill.
The reason given by the Assistant Secretary of State.for

Economic Affairs, Livingston T. Merchant, was that it was

k

. R 79U.S., Senate, Subcommittee of the Committee on Foreign
elations, Hearings, 9_r_I__S_. Res. 282. 1953. PP. 30-3l. 56'
“79-480.

39
not the practice of Canada to comment "on internal domestic
legislation of the United States."80

The attitude of Canada toward United States legislation
for the Seaway could be used to the benefit of Canada and
the detriment of the United States. Canada could use this
record of non-interference as a basis for not considering
any official United States opinion towards an all-Canadian
route. Canadian legislation for such a route would be
domesitc legislation beyond interference by the United States.

IDS "internatioggl_gooperation" proposed gy.£ggflgg;.--
Basically, the Wiley-Dondero Act provided that the United
States would construct certain locks, canals and other water-
Iway features on its side of the International Section of the
St. Lawrence River. in addition, the United States Secretary
of Defense for International Security Affairs, Frank C. Nash,
viewed the management, control and protection of the Seaway
as requiring the co-operation of the two nations.8‘ The
Corporation created by the Act was authorized to make certain
.arrangements with the St. Lawrence Seaway Authority of Canada
relative to construction and operation of the Seaway. This
authorization is not indicative of anything more than a
:statement to work with Canada in harmony during the construction

(of the Seaway. The Act provided that the Corporation shall

r1ot proceed with any construction until its Canadian counter-

I>art provides assurances that it will complete the Canadian

‘

8°Ibid., pp. 486-487.
8ilbid., p. 531.

works. Such a feature does not Illustrate the type of
governmental sanction which could be given under some type
of international agreement.

The Minority Report on the Wiley Bill recorded In
strong tones Its disapproval of using concurrent legislation
as the "agreement" for making the waterway a joint cooperation.
9. o a re went form he watem through the
St. awrence Rivergh ' oinlzL co erativea ro ect exrgfs
B?tween Cana a an th e__n_L ted éfirtates, _a__n this WI -
Etion wou not are ate one. U—Tr'L—Mere'l s such
gg,a reement gfifls i—glslation merel roviT esT
useless nav atidn works IJ the nternatIona Ra ids
Section duglicatThg; thos se already glannedoJ tfi_

Canadian 5 e o t e rIver. J agreement makt_g

 

 

 

 

 

 

 

 

00$

 

 

 

 

 

 

 

tfig_waterwa a lo nt coo eratIve ro 'ect an Tsetting
Eort a e _terms an con tIons o suc an

 

 

a reement should he— reacW e e ore t is iegjs lation
is consTdered, not flafterward es eciall In view of
the guhliciy exgressig disinterest iJ such— aJ_

agreement _y na a.

The immediate Seaway problem was the construction of

 

 

certain navigational facilities with long range economic and
political consequences. The use of concurrent legislation,
while satisfying the demands for construction of the Seaway,
Opened floodgates through which have come a multitude of
saroblems, real or imagined. One such problem is the future
control, joint or otherwise, of the St. Lawrence River System.
An Internal legislative instrument such as the Wiley-
Chondero Act, which provides for co-operation in the Interna-
t:ional area, may not be binding In the sense that a treaty is

binding.

‘

820. S. Congress, House, Committee on Public Works, fig-

Rafi‘ngr‘lfi. _I_5_, I954, p. ll0. Italics are present In the

Orgg

hi
The following opinion by Dean Acheson, Under Secretary
of State, supports this conclusion:
The fact that the Congress may condition an otherwise
valid piece of legislation upon the existence of
23.2312; 3.7235833: §2t?3§§"§F 223"5£It33°§t2235333
Promises of internal Improvements, though they may
benefit a riparian state, may not be regarded as International
promises.
The construction of the Seaway could not be improved
by a type of co-operatlon not permitted by the Wiley-Dondero
Act. The whole project depended upon the attitude of Canadian
Iofficials who are not bound by any international agreement.
However, since the Canadian government wished to co-operate,
the construction was undertaken. The physical result will be
the same whether accomplished by an international agreement
«or by a spirit of co-operation through concurrent legislation.8h
The Bgundary HEELS. 1593121 _o_f_ Egan-Another international
reference by which the Wiley-Bondero Act was justified, was
the attachment of the Act to the Boundary Waters Treaty of
I909.85 The rights of the United States In the St. Lawrence
ltiver are those guarantied by the I909 Treaty and the Order
<>f Approval issued by the International Joint Commission in

1952.86 Since this I909 Treaty is of such Importance to the

‘

83U.S., Congress, Senate, Subcommittee of the Committee
On Foreign Relations, Hearings, 92S. _._I_. Res. loll, I91I6, p. 278.

8Lilntervlew with Raymond F. Stellar, Engineer, St. Lawrence
Seaway Development Corporation, March 2|, l95 .

85U.S., Statutes 25 Large, XXXVI, Part 2, 2hh8.

86Interview with George S. Vest, Canadian Desk, U.S.
Department of State, January 25, l957.

4
h. ' r. Han—L.— _

#2
United States, a clearer understanding of Its purpose
and provisions is necessary.
, The l909 Treaty had a two fold purpose; to settle

questions pending at the time the Treaty was written, and
to permit the settlement of future, frontier problems.87

The preliminary article of the I909 Treaty defined the
boundary waters as "...from main shore to main shore of
the lakes and rivers and connecting waterways, or the portions
thereof, along which the International boundary between the
United States and the Dominion of Canada passes..."88

Article I states "...that the navigation of all navi-
gable boundary waters shall forever continue free and open
for the purposes of commerce to the inhabitants and to the
ships, vessels, and boats of both countries equally..."89

The International Joint Commission created under
Article VIII is composed of six commissioners, three from
each country. Article VIII of the I909 Treaty sets forth
the jurisdiction of the IJC. Under Article IX differences
between the United States and Canada may be submitted to the

IJC "for examination and report."90

 

87Falconer, 122 United States g§.g_Neighbou ..., I925.
p. 79.

88U.S., Statutes at Large, XXXVI, Part 2, Zth.
89mm.
9°IbId.

1&3

Mr. Percy E. Corbett in his work, _T_h_e_ Settlemen; 91"
Canadian-American Disgutes, states that the earliest attempts
for an international commission were started in I89h-I895 at
the Irrigation Congresses attended by the United States,
Iflexico, and Canada. A resolution was adopted urging that an
international commission be established to settle conflicting
cflaims along international streams.9'

The resolution was accepted by Canada and the Interna-
tional waterways Commission was established with very limited
l:owers.

It could merei investigate and report. It had
none of the semi-judicial or administrative duties
which In certain respects have been entrusted to
its successor. At the same time, the range of
territory over which it exercised its powers
was greater than that in which the International
waterways Commission was empowered to investigate and
report on questions dealing with "waters adjacent to
the boundary between Canada and the United States,
Including a I the waters finding their wa by the
River St. Lawrence to the sea"; so, ou will see that
its scOpe was quite wide geographica Iy though the
powers were limited merely to investigation and report.

One thing the old International waterways Commission
did was to ay down certain conditions of priority in
the use of boundary waters, domestic and sanitary
uses being first, navigation next, and power and
irrigation third, and so on. Another thing they
did was to recommend to both governments that they
should set up a permanent body which would take
the place of this temporary body and to use It for
the settlement of all boundary waters questions.

That was agreed to by both governments, a treaty was
eventually ratified which provided not merely for the

‘ 9'The Settlement of Canadian-American Dis utes: ‘5 Crit-
3&1- Stud—{of Methods 953; __hesu Its (Haw Haven: gale University
ress! 77:- pe 56.

Ah

establishment of a permanent body - the International

Joint Commission of today - but referred to It certain

boundary water problems and also made it possible to

refer to this commission certain broader questions

in dispute between the two countries that had no

special reference to the boundary waters; in other

words, making it, as Sir gilen Aylesworth said, a

miniature Hague Tribunal.

The International Waterways Commission was superseded
by the International Joint Commission in 1909 within the
provisions of the Boundary Waters Treaty of that same
year. Thus the l909 Treaty established a boundary and the
International Joint Commission, built upon the historical
foundations of the International waterways Commission.

Opinions were not in harmony over the particular mission
to be undertaken by the International Joint Commission
during its juvenile period. Secretary of State Charles
Evans Hughes suggested in I923 that another commission be
established to settle the "domestic questions" between the
United States and Canada. The St. Lawrence waterway question
Ivas thought by some to be a "domestic question" during this
period.93

Speaking in the year I926, Henry Lawrence viewed the
lrIternationaI Joint Commission as already having served

Several valuable functions up to that time. He also stated

tIPIat the great hopes held out by some onlookers never

materialized. The International Joint Commission had not

\

92Canada, Parliament, Senate, Special Committee, Eflgf
jCeedIngs, lg Inguire “Into the Develogment and Improvement _c_>_f_
JE._55._£. Lawrence ver,iDttawa: , PP. 73-80.

I 93"Arsenals versus Courts," (editorial), The New Re ub-
42. LIX (July I7. l929), 221-222. “‘4-

 

 

AS

become a "miniature Hague Tribunal," although "it has given
adnirable service on specific boundary issues."9h
And there were those in Canada who held still another
view as typified by the author of The §_t_. Lawrence 2932 ELM"
way; ‘5 Canadian Appraisal, when referring to Senator Townsend's
resolution of July, l9l3, which prOposed that improvements be -
made for navigation in the boundary waters. The Canadian
author viewed the United States suggestion to place the
resolution in the hands of the International Joint Commission
as an illogical scheme.95
The extent of participation by the International Joint
Commission took on a greater importance as the number of
problems along the boundary increased. Article III of the
Treaty attempted to outline the role of the IJC regarding the
level of boundary waters. Since the creation of a St.
Lawrence Seaway might affect the level of the waters, the IJC
twould in some manner enter into the discussion. Various
alternatives by which Article III could be implemented were
gyiven on May 9, l928 by Dr. 0. D. Skeiton, Under-Secretary
0f= State for External Affairs. First, there may be a treaty
between the two countries without any reference to the IJC.
secondly, the governments may decide that the contemplated
”Q rks would not affect the waters and, if agreed to by both

k

94"Water Problems of the Canadian Boundaryfl' Foreign
W. IV. (July. 1926). 551-558.

C 95cOnrad 9. Wright, The St. Lawrence Dee Waterway: A
pgnadlan Appraisal (Toronto: The Macmillan ompinYn 5)»
- l5-l7. .

‘o {_-

q“. IEED . y

#6

governments, then the matter would not be referred to the IJC.
Of course the third possibility was that there would be
navigational works which do materially affect the level
of the waters on both sides of the boundary. Such matters
would go directly to the IJC.96
The use of Article III of the l909 Treaty and the subse-
quent uses of the International Joint Commission were not always
applicable to any question concerning the international boun-
dary. While advocating the l932 Treaty on November 28, l932
prior to its defeat in the Senate, James Grafton Rogers,
Assistant Secretary of State, sensed the basic understructure
of the Boundary Treaty when applying this same treaty to the
Chicago Diversion problem. The basic understructure, according
to Secretary Rogers, was the operation of principles, inter-
national law, comity or simply working agreements. The use
to which he put the l909 Treaty, when dealing with the
Chicago Diversion problem, was permissable since he was only
forwarding the principles of the Treaty. The l932 Treaty
was applied to a particular problem which was seemingly
<Jn1itted "under rather ambiguous language in the l909 Treaty."97
It appears that (l) the l909 Treaty was hoped to provide
a solution to future problems through the use of special agree-

ments, (2) specific boundary issues were to be resolved under

k

96Canada, Parliament Senate, Special Committee, Pro-
m. . ., l928, pp. 65-86. _-

97U.S., Congress, Senate, Subcommittee of the Committee

on Foreign Relations, Hearings, on 5. Res. 268, fig. Lawrence
hEEJFcerway, 72nd Cong., n ess.,—T932. P- 2 -

A7
the l909 Treaty and, (3) the exact role of the International
Joint Commission was not clear with regard to the types
of problems which could be presented to it.

Article XIII defines what is meant by the use of "special
agreements" of the l909 Treaty.

In all cases where special agreements between the
High Contracting Parties hereto are referred to in
the foregoing articles, such a reements are understood
and intended to include not on y direct agreements
between the High Contracting Parties but also any
mutual arrangement between the United States and the
Dominion of Canada expressed by concurrent or
reciprocal legislation on the pagt of Congress and
the Parliament of the Dominion.9

The question with which the United States became involved
.after the failure of the l932 Treaty and the attempts to
implement the l9Al Agreement was what use, if any, should be
made of the International Joint Comnlssion if concurrent
legislation was to create the St. Lawrence Seaway? As
Spokesman for the opponents of the Seaway, Mr. Borchard
refuted the use of concurrent legislation.

Passing reference may be made to the Treaty of I909
between Canada and the United States, establishing the
International Joint Commission, and the suggestion that
has occasionally been made that the St. Lawrence
waterway Project might, under Articles A and l3 of that
Treaty, be considered as legislation supplementing
Artic e 3, i.e., a special agreement concerning

- the "uses, obstructions and diversions" of boundary
waters, entrusted to the International Joint Commission
or to special agreement or concurrent legislation.

The Honorable J. E. Read, Legal Advisor of the
Department of External Affairs of Canada, in a memoran-
dum of March l2, l9Al, seems to have denied this
contention, as does Mr. Johnson of the Lake Carriers
Association, in a brief submitted to the Committee on

98u.s., Statutes 1; Large, xxvu, Part 2, 2AA8.

A8

Rivers and Harbors, August l, l9Al. It is not insisted
upon by Mr. Berle, in his testimony before the Committee,
except that he suggests that the same method, concurrent
legislation, is provided for in Article 3 of the l909

Treaty and is now undertaken in the St. Lawrence Water-

way Project. A material difference, however, is that the

co lateral supplementary agreements contemplated in l909
were based on a formally ratified treaty, wh§§eas the
St. Lawrence project has no such foundation.
Whatever the arguments for or against the use of the
treaty or executive agreement these agreements were international
in character and could be made apart from the l909 Treaty.
However, justifying concurrent legislation as an international
lagreement by mere reference to the I909 Treaty appears to be
\ueak. Such a reference does not bind the actions of either
the United States or Canada, nor does such a reference appear
in the Act.
The Use Made.gfi the International Joint Commission.--
A much stronger justification is found in the use made of the
ltaternational Joint Commission as themediator for the
i3‘lanning stages of the Seaway and the ultimate approval by
‘tine International Joint Commission for the construction of
the locks and other structures. Does the use of an inter-
national body such as the International Joint Commission
<2<3nstitute an "agreement" in the sense that an agreement
has been herein discussed? The work of James L. Kunen
‘ s most pertinent at this point.
But did the concurrent applications of the parties
constitute an "agreement" within the meaning of

Article XIII of the Treaty, and hence operate to
remove the international agency's authority over the

99oEanion . . ., l9AA, pp. 45-46.

 

_
tr. ..

A9

matter? Clearly, there was no concurrent or
reciprocal legislation here on the part of Con ress
and the Canadian Parliament. While the Federa?
Government of Canada and the Province of Dnatrio
had enacted authorizing legislation, the Congress
of the United States had not, nor was there any
evidence that it intended to do so in the near future.
There was no formal, direct agreement between the
Governments; at least, this was the interpretation
placed upon the exchange of notes and concurrent
petitions of the two parties, and it must be
conceded that this interpretation ought to be

given considerable weight.

In point of fact; it is to be doubted that the
agreement to submit an application to an international
tribunal, acting in a quasi-judicial capacity, and the
preliminary negotiations leading up to the concurrent
submissions constitute executiaa agreements, in the
traditionally accepted sense.

Subseguent 3551911 by _t_hg 29159;! M Government.--
An additional reason for maintaining that the Act was an
il1ternational agreement was the subsequent action taken by
tlwe United States and Canada. This action took the form of
an agreement between the two nations effected by an exchange
Of notes signed at Ottawa on August l7, l95A.‘m

This agreement effected a modification of the notes
between the two nations dated June 30, l952 in the light of
Public Law 358, May l3, l95A.‘02 According to an official of

the United States, the legal basis for United States' rights

‘

loo"International Negotiations Concerning the St. Law-

"ence Project," Universit 91 Detroit Law Journal, XXXIII
(November, l955), 25, 2|.

‘O'U.S., President, l953 - (Eisenhower), Saint Lawrence
Seawa , Treaties and Other International Acts Series ,
partment of State Publication No. 5666 (Washington: U.S.
Government Printing Office, l955).

lozlbid.

50

in the International Rapids Section of the River, along with
the Boundary water Treaty of l909, were the notes of June

30, l952 by which the United States and Canada agreed to
accept the decision of the International Joint Commission

for the construction of power facilities and subsequently

the navigational works since navigation has preference over
power development according to the l909 Treaty.‘03 The Canadian
note of June 30, l952 expressed the desire to construct

locks and canals on the Canadian side of the international
boundary according to the standard expressed in the Agreement
of l9Al. Furthermore, Canada stated at that time that it
was Canada'sdesire that the navigational and power projects
be proceeded with concurrently.

The Order of Approval by the International Joint Commis-
sion on October 29, I952 gave the order for construction of
rwavigational and power works according to the applications
submitted by the two governmentamu The Order of Approval
Slave Canada permission to proceed with navigational works,
t:he Seaway, without the aid of the United States, except as
tzhe power projects related to navigation. Canada was to build

t:he Seaway according to the proposed Agreement of l9Al.

‘

'03Interview with George S. Vest, Department of State,
(Ianadian Desk, Washington, D.C., January 25, I957.

‘OA"United States-Canadian Construction of Power Works
311 St. Lawrence River Authorized (Text of order of authoriza-
tzion, dissenting opinion, and the majority opinion of the In-
gewationalLJoint Comn'igsgion dated October 29-November 2?,I952),"
u et n partment o tate XXVll December 29, l952 ,
m. 1+. ’

SI
Before the Wilen-Dondero Act was passed in May, l95A,
it was necessary for Canada to terminate the proposed
Agreement of l9Al since the United States by the Wiley-
Dondero Act could not implement the Agreement without the
Senate's waiving its treaty prerogative. Canada terminated
the Agreement on November A, l952, thus avoiding for the
United States the ambiguity of having before the Congress
an executive agreement and concurrent legislation for the
same project.

Thus, the notes of August l7, l95A were to give added
documentation to the joint applications submitted by the two
nations together with the exchange of notes of June 30, l952.
.Apparently the action of August l7, l9SA was to bind the
rather shaky "international agreement" of submitting concur-
I-ent applications to the International Joint Commission.

l‘t is suggested that the conclusions stated by James L.
liunen might be projected to include not only the preliminary
rxegotiations and concurrent action of the two governments but
ssubsequent negotiations as well. That is, the action of the
lJnited States and Canada following the Order of Approval may
rrot bind the United States since the notes of August l7, l95A
‘vwere modifications of the notes of June 30, I952 in the

I ight of domestic legislation, and domestic legislation can-
rmot bind the actions of the United States or Canada in an

i nternatIonal project. It may be doubted whether subsequent
rmegotiations following concurrent submission of applications

to an international tribunal constitute executive agreements.

52

Conclusions.--The Wiley-Dondero Act, the end of a long
series of attempts to create the St. Lawrence Seaway, had as
its purpose the historical purpose of the United States and
Canada in this area, namely, the joint control of the St. Law-
rence River by both countries. The international foundation
for the Act appears to be weak.

Geographical proximity and friendly relations are not
sufficient to warrant the use of concurrent legislation. The
international “co-operation" pr0posed by the Act does not
justify it as an international agreement. The Act does not
mention the Boundary Waters Treaty of l909, the treaty
'which guarantees United States' rights in the St. Lawrence
River. Furthermore, the use of the International Joint
Commission as the mediator for the planning stages of the
Seaway and the ultimate approval by the International Joint
Commission for the construction of the locks and other
structures, together with subsequent action by the two
ggovernments, do not make the Act an international agreement.

Because the Act was domestic legislation and therefore

cannot bind the actions of either the United States or Canada,
airwd because the Act lacks a strong international foundation

to be considered as an "international agreement", the Act may
ric>t guarantee the continued historical policy of co-operation

V'T'th Canada in the Great Lakes-St. Lawrence River Systems

CHAPTER IV
THE ALL-CANADIAN ROUTE

The Canadian Government gave serious consideration
to an all-Canadian Seaway during the years l950-l95A.‘05
Some people were of the opinion that Canada was merely
bluffing and was trying to prod the United States toward

quick construction by use of an economic threat. Others

looked upon the threat as being of a more serious nature.

53

Various reasons for United States' participation with Canada

were set forth when Canada threatened to build the Seaway

Project alone.

\

WHY THE UNITED STATES SHOULD PARTICIPATE:

I. This Is a vital and strategic waterway that leads
directly to the heart of the United States. No nation
has ever voluntarily forfeited control over a major
waterway. Witness the Dardanelles, Suez, and Panama,
because control of such a waterway means control over
commerce, a major barbaining point in international
relations.

2. The economy of the United States because of
greater gopulation and industry will pay for the seaway
anyway, y paying the major proportion of the revenues
in navigation to Is. Eventually Canada will both own
and contnol it and the people 0 the U.S. may be called
upon to pay tolls forever.

3. Failure to join with Canada would be a serious
default In the Interest of national security because:
A. Admission of Foreign Ships to American waters
would be in the hands of a foreign, albeit friendly,
nation.
B. Defense of the Seaway from sabotage and
military action would be beyond U.S. responsibility,
except as permitted by Canada by mutual agreement.

1 IOSU.S., Con ressional Record, 83rd Congo. 2nd 5655-:
95A, C, Part l, 2%. A list of sources is herein cited by
senator Kennedy to this effect.

5A

C. Rights of entry and navigation might well
differ in the event of difference between a neutral
and belligerent status of U. S. and Canada.

D. In the event of capacity operation of the
Seaway, Canada would have control over priorities on
Seaway use for garious ships and cargoes, in wartime
or peacetime. O

The effects of an all-Canadian route as set forth
above would still exist if Canada were to build the route
after the construction, authorized by the WIley-Dondero Act,
was completed.
A map of the International Section of the St. Lawrence
River shows that an all-Canadian route is entirely within the
realm of the possible.‘07 All that is necessary for Canada
to possess a Seaway for herself is to twin her locks at
Iroquois, deepen the existing fourteen foot channel around
the new Barnhart Island Power House and add new locks. The
effects of such construction may be of grave consequence
to the United States.
The Canadian Government was well aware of the future
possibility of gaining control over the economic lifeline
at her southern border, as evidenced by the agreement between

‘tiwe United States and Canada signed at Ottawa on August l7,
3 95A.

_

S I:6Cireat Lgtgsigt. hLawrence Association, The _S_t. Lawrence
eawa ro ect, u t e United States Participate? (W355:
Wifi?‘ Great fiakfi-erence Association, I953).
'07Appendix, p. 77.

 

55

Accordingly the Canadian Government is prepared
to modify the arrangements set forth in the Notes
of June 30, I952, to the extent that Canadian
Government will be relieved of the obligation towards
the United States Government to provide forthwith
the navigation works in the general vicinity of
Barnhart Island on Canadian territory and in the
Thousand Islands section.
A. (a) The Canadian Government wishes to state,
however, that it will construct forthwith
a canal and lock at Iroquois and that in
addition it intends, if and when it considers
that parallel facilities are required to
accomodate existing or potential traffic,
to complete 27-foot navigation works on

the Canadian side of the International Rapids
Section.

5. The Canadian Government reserves the right to
decide whether and in what manner it will continue
lA-foot navigation works through the International
Rapids Section but agrees to consult the United
States Government on the questi8g of levying tolls
in connection with such works.

These reservations by Canada, as described above, leave the
door open for the expansion of existing facilities entirely
vvithin the Canadian border, providing for an all-Canadian route.
In the light of these facts, old issues are resurrected;
<>Id problems become new problems. James L. Kunen saw the
major negotiation for the future as that of tolls. The future
control of the Great Lakes-St. Lawrence River System may be

a greater problem.

Since enactment of the Seaway law minor issues
such as the applicability of customs and immigration
laws have been resolved. Canada was firm in its
position that it will build the portion of the deep
canal around the Iroquois dam on its side of the line.

'OBU.S., President, l953-(Elsenhower), Saint Lawrence
\seawax. l955. PP. "Z-

56

Canada would not agree not to construct a parallel

canal around the Barnhart power-house and dam in the

future. Whether these negotiated concessions needed

to have been made by the U.S. it is not now

necessary to discuss.

The major negotiation which lies ahead is also
i232??'§.‘3:.Z'fi‘tofi‘zpli‘fi‘fié"..Itiflfi8“°""s "*‘°
The problems which were to be alleviated by the Wiley-Dondero
Act may be the same problems facing the United States at some
future date in the economic expansion of Canada.

Although the Wiley-Dondero Act appears to be
successful, this apparent success may be a great burden on
the future action of the United States. Expediency was
served admirably by the Act. Where the treaty and executive
agreement "failed," in the ratification stages only, the
Act succeeded. The international instruments were never
permitted to be put into operation. The dams, navigational
aids and other physical features of the Seaway are being
constructed under the Act.

The Act gives positive impetus to an all-Canadian plan
and the loss of the International Section of the St. Lawrence
River under joint control. A map of the proposed lock and
dam construction shows five locks being built entirely within
the Canadian boundary. This construction is a necessary
part of the International Section farther up stream.

Furthermore, a map of the proposed construction shows

that additional locks are being built entirely within Canada.

 

I09 '
Kunen, Universit lgfi Detroit 523 Journal, XXXIII
(November, I955), pp. 35-g6.

57
These locks were included in the original all-Canadian plan
for the development of the area. The lock at Iroquois was
originally designed to be within the American boundary. Under
the guise of concurrent legislation, Canada was allowed to
build the Iroquois lock within her boundary. The Canadian
authorities also reserved the right to build locks, again
within her boundary, around the Barnhart Dam at a latter
date. It should be apparent that the United States may not
be able to negotiate with Canada to prevent the building of
locks around the Barnhart Dam without some concession,
even if possible, being offered to Canada in return. The Sea-
way is being built under the instrument of concurrent legis-
lation which may not be used as a foundation for claiming
for the United States any rights or obligations in the matter.

The Canadian Government cannot accept the opinion
of the United States Government that the Canadian
decision to undertake twenty-seven foot excavations
in the Cornwall north channel is not in accord
with the exchange of notes of August l7, l95A, or
other arrangements between the two countries. In its
note of August l7, I9SA, the Canadian Government
declared its intention to complete twenty-seven
foot navigation works on the Canadian side of the
International Rapids Section, if and when it considered,
after consulting your Government, that parallel
facilities were required. The Canadian Government
does not propose to complete parallel navigation
facilities at Cornwall at an early date. However,
it considers that the Canadian right to build such
facilities, lncludln twenty-seven foot excavations
north of Cornwall Is and, was reserved in the I9SA
exchange of notes and In the other exchanges of notes
and letters on the St. Lawrence Projects, whereas
these exchanges of notes and letters cover only by
implication the navigation excavations in the south
channel. Moreover, the north channel excavations

58

will compensate for the south channel excavations
and thus serve the purposes of the Boundary Waters
Treaty. ‘

That Canada is moving in the direction of the all-
Canadian plan is becomingincreasingly apparent. The
Canadian Government is dredging the north channel around
Cornwall Island while at the same time.the south channel is
being dredged as part of the Seaway construction. The
United States Government looked with displeasure upon the
action. .

The Government 0f the United States has given
careful censideration to the situation which will exist
If the Government of Canada proceeds to carry out
its announced plan. While it believes that the
proposed Canadian action Is not in accord with the
agreement which this Government entered into as a
result of the enactment of PL-358, 83rd Congress
(2nd Session) and*with the other arrangements which
have been made between our two Governments with
respect to the St. Lawrence Seaway, the Government
of the United States does not wish to dela the
construction of the joint Seaway project, in which
both Governments are mutually interested, and
consequently it is bound by events to take cognizance
of the1gg facto situation which is created by the
decision of Canada to proCeed with deep-water dredging
in the channel north of Cornwall Island.

In the circumstances, the Government of the United
States deems it important to record that the United
States reserves all its rights to protect Its Interests
in this matter.H
The rights of the United States in the St. Lawrence

River are those guarantied by the Boundary Waters Treaty

 

"'°U.S., President, l953-(Eisenhower), Saint Lawrence
Seaway; Dee -Water Dred in ‘12 Cornwall Island Channe s,
reat es an Other nternationai Acts Series 2758
(Washington: U.S. Government Printing Office, I957), p. 2.

"'U.S., President, l953-(Eisenhower) Saint Lawrence
Seaway, l957. PP. I-2.

59
of l909 and the Order of Approval issued by the International
Joint Commission in l952. Furthermore, anxiety over an all-
Canadian route is said to be the result of ”over-fed fears."”2

The United States should not become alarmed over an
ail-Canadian route, says Mr. Vest, since the sailing course
within the International Section of the St. Lawrence River
crosses the International Boundary nine times between a
point where the all-Canadian route would enter into the
main channel of the River and the end of the International
Rapids Section at Chimney Rank.”3 It can be questioned,
however, whether all of the effects previously mentioned
as resulting from an all-Canadian route would be eliminated
by existing control over the present sailing courses which can
be changed by plan and engineering.

Conclusion.--The threat of an all-Canadian route to the
Great Lakes was a reason for the passage of the Wiley-Dondero
Act of i95A. The Act, since it was not an international
agreement, cannot prevent Canada from proceeding unilaterally
in this area. In actuality, the provisions of the Act promote
the all-Canadian route, thereby breaking the historical
policy of bilateral control over the International Section
of the Seaway and thus, the Great Lakes System. Apparently
all that is necessary for Canada to have an all-Canadian

version of the Seaway, when present locks become inadequate,

 

lizlnterview with George S. Vest, Canadian Desk,
U.S. Department of State, January 25, I957.

"3LIoneI Chevrier, The 1;. Lawrence £22122: 5.36.5122 at

Ma 5.2: the Seaway with Commentar (Ottawa: The St. Lawrence
Seaway AuthorIty, l955), ap-The International Rapids Section.

is the futher development of existing facilities and the
changing of the sailing course to be solely within her

boundary.

6O

CHAPTER V

CONCLUSION

The Wiley-Dondero Act, together with like legislation
at Ottawa, has cast the mold for the St. Lawrence Deaway
of l959. The Act is the culmination of many attempts to
authorize construction of a Seaway. Earlier attempts were
by use of treaties and an executive agreement. The use
of concurrent legislation as embodied in the Wiley-Dondero
Act was a marked departure from previous attempts. The
Act was domestic legislation while the other attempts were
international agreements. Since the Act is not an inter-
national agreement, it does not guarantee for the United
States the bilateral control of shipping in the Great
Lakes-St. Lawrence River System. The building of an all-
Canadian Seaway would give Canada the exclusive control of
all ships passing through her Seaway since there is no
international agreement _whereby the United States would
have joint control.

The role of Congress in the control of United States
and Canadian relations, concerning the St. Lawrence Seaway
Project, has been great. The result of this control may be
a loss for the United States.

"In international affairs a country can control
the formulation of policy, but not Its determination.

It must share the determination with others. It can

proceed only as far as others are willing or can be
persuaded or coerced to proceed. Such matters are

beyond the scope of national law. Clearly their conduct

is not legislative. This does not mean that the

62
legislature, cannot in the last analysis control the
executive's action in conducting international relations;
but it does recognize that the legislature cannot
determine the positive outcome of international
relations. Failure of legislatures to realize
the truth in this respect leads to frequent absurdities
and occasional calamities."

It is not too late for the United States to seek
the bilateral control of a changed Great Lakes-St. Lawrence
System, resulting from an ail-Canadian Seaway. A discussion
of the toll arrangements for the present Seaway should be
taken as an opportunity for the United States to enter into
a discussion of the future control of this international
intercourse without the use of economic or political
aggrandizement. Under Section l2 of the Wiley-Dondero Act,
the Corporation is "authorized and directed to negotiate",
concerning tolls, rules for measuring vessels and the
establishing of an "equitable division of the revenues
of the seaway between the Corporation and the Saint
Lawrence Seaway Authority of Canada."”5 Actual construction,
which had been planned for years through governmental and
diplomatic negotiation, was a relatively easy starting point
from which the Corporation could launch the Project. The
fonmation of toll agreements is to be left for future

negotiation, which may have to be undertaken not by the

Corporation but by the United States and Canadian Governments.

 

l”‘W’allace McClure, International Executive Agreements:
Democratic Procedure Under the ConstitutTon gifthe UnTted
States (New York: Columbia University Press, I§ET), p. 256.

”5u,s., Statutes at Large. LXVIII. 96.

63

A spokesman for the St. Lawrence Seaway Corporation has
expressed the opinion that the Corporation believes a satis-
factory system of tolls can be worked out'with its Canadian
counterpart.”6 Any such settlement would last only so long
as Canada did not twin-up her locks. The future control of
the Great Lakes-St. Lawrence River System should be settled
prior to the tolls discussion.

There appear to be several alternatives for the United
States if she is to have an equal share in the control of the
System. The alternatives are also applicable in part to the
settlement of all future questions over this international
boundary.

First, if the United States Government is to take
advantage of every opportunity to maintain equal control
over the System, it should use the tolls agreement discussions
as a splendid opportunity to proceed to a settlement of the
control of the Seaway under the assumption that Canada will
in the future have an all-Canadian route. An opportunity for
the United States to broaden the scope of the tolls discussions
will be lost should the respective agencies settle the tolls
question.

The failure of the United States to expand the tolls
discussions should not be taken as the last opportunity which
this country has in order to have equal control of this in-

ternal lifeline to the sea. As disastrous as this failure

 

"5interview with Raymond F. Stellar, Engineer, St.
Lawrence Seaway Development Corporation, March 2i, I956.

6A
might be, a second alternative is open; a greater use may be
made of the International Joint Commission. Should the future
control of the Seaway be placed in the hands of this commis-
sion, the United States would have joint control. The pre-
vious discussion has shown that a greater use of the Inter-
national John:Commission was contemplated. Such a use is
not outside the realm of the possible. "Furthermore, it is
not only disputes which may be brought before the International
Joint Commission, but also, according to the Treaty's preamble,
the adjustment and settlement of all questions involving
the rights, obligations, or interests of either country or
its citizens, in relation to the other."”7

The third possibility, and the one which holds the

least promise, is that this country should depend upon the
present friendly relations with Canada to guarantee the
United States equal control over the Great Lakes-St. Lawrence
River System. The agreement between the United States and
Canada of August l7, l95A provides that each country shall
notify the other if either country should undertake to
construct any navigation works in addition to those provided
in Public Law 358. This agreement must be the starting point
for a discussion of the future control of the System, based

upon friendly relations with the nation to the north.

Perhaps an unusual feature of this study has been the

viewing of the Wiley-Dondero Act as an international agreement.

 

‘I7Kunen, University gfi Detroit Law Journal, XXXIII
(November, I955), p. 20.

65

Domestic legislation in usually not viewed in this manner.
However, if the Congress exercises an influence in foreign
affairs beyond the accepted sense, legislation, such as
the Wiley-Dondero Act, may be viewed as coming within
the general area of international agreements. The word
international would then take on another shade of meaning,
since the Act was not agreed to by the Canadian Parliament.
Serious doubt remains whether such a view would find
legal justification. The author's purpose in taking this
viewpoint was to show that the Act was in the historic
span of attempts to accomplish the Seaway Project and
that the Act fulfilled the same purpose as a treaty or
executive agreement.

The author hopes that he has restated the argument
for the need of an international agreement beyond what
has been developed in other studies. There are a
relatively large number of writings which attempt to
prove that the treaty was the proper method for authorizing
the Seaway Project. Likewise, there are numerous writings
“supporting the executive agreement method. The author has
attempted to show the need for any international agreement,
since the Wiley-Dondero Act was only domestic legislation.

There are several limitations placed upon the research,
including the multitude of material available to the author
who»did not have the time, patience, or interest to examine
the numerous aspects of the Seaway Project. Unexplored

were those additional documents available at the Department

66
of State and the Department of External Affairs. Another
limitation was the changing character of the Project. New
problems appeared at frequent intervals during the prepara-
tionof this study. The author found it difficult to
decide where to limit the discussion of the current
aspects of the Project. Also, the author was perhaps
hypersensitive to the thought of using domestic legislation
where a treaty was once thought to be necessary. The
practice of replacing international agreements with domestic
legislation may have escaped the author's notice, thereby
giving the author an exaggerated importance of the problem.

A modification of the study would include additional
research into the rights of the United States in the St.
Lawrence River. Several related topics to this study
may be developed into worthwhile research problems.

First, the Canadian attitude toward other countries which use
the St. Lawrence Seaway System might be examined. Another
topic of interest is the treaty with Canada for the develop-
ment.of water power in the Niagara River. The reservation
clause of this treaty, placed therein by the United States
Senate, providing that Congress must approve any license

for the United States Development of the River, appears

to be another example of the conduct of American foreign
affairs by the national legislature. Water pollution in the
St. Clair and Detroit Rivers and Lake St. Clair is a topic
of concern to the State of Michigan. The current status

of maritime law and the number of cases resulting from

increased traffic on the St. Lawrence Seaway would be
a useful study. The author hopes to examine these or

related problems in the near future.

68

BIBLIOGRAPHY

* Indicates Sources Footnoted
Public Documents

Canada. Department of External Affairs. Agreement Between
Canada and the United States of America e ating to
the Great thhes-St. Lawrence-Basin OeveTEpment; Signed
ET.Ottawa, Harchfi _2, iEEI. Ottawa :‘TOAT.

Canada-Ontario fig. Lawrence Agreement. Ottawa: l932.

. Corres ondence and Documents Relatin to Great Lakes-
St. [awrence Basin Oevelopment, m. Ottawa:
._,;____.._____

WM.

fl. Corres ondence and Documents Relating to St. Law-
“rence Oee Waterwafi reat 2, '
anaO

'Nia ara Tonvention,
iver fan Kenogami iRiver( on
rejects an x ort flectrica rPower. (Ottaw: I938.

 

 

a.

 

 

fCorres ondence Relatin ‘gp Diversion of th Waters

reat a es ‘_y t e Sanitary OTEEFTEto _Ohicago,
Ottawa 928'.-

 

 

 

. ,fig. Lawrence Waterway Project. Ottawa: i928. *

Treaties and Agreements Affectin Canada in Force

Between His Ha'est and the Jn ted’ tates pjfhmerica
with Subsidiary Documents, F8TA-i925. Ottawa: .

 

 

 

Canada. Department of Transport. The Canals of Canada under
th elJurisdiction of the Department of Transport. Ottawa:

Canada. Parliament. Senate. Special Committee on Develop-
ment and Improvement of the St. Lawrence River. Pro-

ceedin s, with Prefator Di est of the Evidence AHHOced
TES— e____n__ts __FfiTwatawa: 978. _7

U.S. Congress.d yous? ofcRepresentafiives. CommitteeRon Inter-
state an ore gn ommerce e ort, on H J es. 52
St. Lawrence River. Report No. 59. r‘H Cong_ , Ist
sts., April 50, I933.

 

U.S. Congress. House of Representatives. Committee on Public
Works. Hearin s, on . J. Res. 2, St. Lawrence
Seaway. arts aHHHTI.- 82h3 Cong— , Ist Sess. , l95l.

69

. Hearin s, on H. J. Res. “2 Great Lakes- St. Lawrence
Basin. Hist Cong. , 2nd Sess. , I956.

. Re art, on 5. M5 The St. Lawrence Seawa Report
No. IEIS. 83r3’Cong. , Ina February |§, l95A, *
U.S. Congress. House of Representatives. Committee on Rivers

and Harbors. Hearin 5, Great Lakes- St. Lawrence Basin.
8 Vols. ., 77th ong. , st Sess., i951. *

 

U.S., Senate, Re ort of the International Joint Commission,
67th Cong., 2n d_§ess., Senate 53c. IIE, IQTT.

U. S. Congress. Senate. Committee on Commerce. Hearin s, on
S.w 8, Saint Lawrence River Near Lon Sault Isian ,
0or _, Elst Cong. , 3 rd Sess. , |§I

U.S. Congress. Senate. Committee on Foreign Relations. Hear-

in s, on . J. Res. ';1_ and S. J. Res. Ill, St. Lawrence
Seaway ana'Power Frolect. '8263 Cong. , In d‘sts. , I552. *

. uestions and Answers on the St. Lawrence Seaway.
83 r3 Cong. , 2n 3 Sess. ., l935._

1. Re ort, on S. Resd Zl The St. Lawrence Seaway.
Report No.0noist1ess.., i§§§.

 

 

. Re ort, on S. . Res. IDA, Great Lakes- St. Lawrence
Basin T

o e't'Fi'er wt'i___h-HTnorit ews 90? ELr .Lhite. Report
WA9§ 7§t HT ong. , 1nd Sess. ., _*

. St. Lawrence Seawa Manual: ACom ilatlon of Documents
n-Fe G reat Cakes eawa ro ect and Correlate ower
UEve Io opment. Presented Eys. Hr. *Wiley. Senate Doc. '55.

ong., 2nd Sess., l9

U.S. Congress. Senate. Subcommittee of the Committee on

Commerce. Hearin s, on 5. Res. l 8 , Great Lakeszgg.
Lawrence Basin. 98th—Cong., Zn ess., I955. *

U.S. Congress. Senate. Subcommittee of the Committee on

Foreign Relations. Hearin s, on S. Res. 28 St. Law-
rence waterway. 72n a Cong. , {_H'Sess. , l2

Hearin s, on S. Res. 58; and Amendments thereto, é.

Res. and-S. J. Les. St. Lawrence Seaway.
83 rd ong. Ist Sess. ., I9 '75

. Hearin s, on S. . Res. IDA, Great Lakes- St. Law-
rence Basin. '79th‘Cong. , 2n 3 Sess. ., *l§55. ‘i-

. Hearin s, on S, J, Res. lIi, St. Lawrence Seaway
Proiect. 80tfi'Cong., is tSess. ,-T9h7.

70
S. Congressional Record. Vol. L, Part 3.

Vol. LXXVII, Part I.

Vol. LXXVIII, Part A.

Vol. LXXXVIII, Part 3.
Vol. C, Parts I, 2, and 5.

 

 

U. S. Department of Commerce. The St. Lawrence Survex. 7 vols.
Director, N. R. DanieIian, —I§Ei.

U. S. Department of State. Naval Forces on the American ALakes;
lication and Inter retatlon o?'?he Rusr - Sa ot sree-6
ment. reatr es and D ther Internatio new erie
epartment of State Publication No. 3369, ci949.
U.S. Federai Register. Vbi. V, No. 20A.

Vol. XVIII, No. IOSDO.

 

 

U.S. President, l92I- 23 (Harding). Messa e from the President
of the United States TransmittiEg_ aEetter *r rom 1the Sec-
retar 0? State Su Emittr_g_ the egort o? the In terna-

 

 

 

 

tIona Joint Commission Concern n 7m rovement of
‘—he St. anr renc eRiv ver —Between ontreal Ian a e ntario

 

 

For szi at on and Power. Senate Doc. th Cong.,
2nd Sess., i522.

U.S. President, I933-h5 (Roosevelt). A rem went between the
United States of America and Cana a: fecte ._xT x-
chane 0? Notes Si ned U¢?35er IE and 3!a n3 NovemBEr

, J 50. Executive Agreement *Series _No.‘TUT. Depart-
ment 0 State Publication No. Ishl, I9hl.

 

Communication from the President of the United States

 

 

 

Recommenain Authorization oi Construction 0? the
[awrence eawa and Power Pro ect, Pursuant— :07 t e A ree-
ment 0 March I% WQ wit anada, as an Inte ral Lar

the JOInt De ense of t e TNorth AmerIcanh ont nent.
'SEnate Doc. 63. 77th—Cong. , Ist Sess. ,

. Message from the President of the United States Re-
uestIn the ConsTderation oi'RStTTTcation b the Senate
0? the so- -called "St. [awrence-Treat with anSES,

Thansmittin _,Summar 0? Data Pre area 5 the Inter???

partmentai card‘gg the-great LaEes-St. awrence Pro-

'ect. enate Doc. ITUT 73rd Cong.,-7nd Sess., I§IH

 

Text of the Treat between the United Sta1:es and Can-
ada, Signed at as Ington 3U ly l8, gggg; Statements 0?

the Press entfandDe artment of-Statei and Re ort oF‘Lhe
0 nt Board 0 neers o A r: DE artment
3 l E l 7 _2T§%22;.;2ZZ- P

 

 

0? St tat eFu bTTcation No. 337,

7i

U.S. President, I9li5- -53 (Truman). Comnunication from Presi-

dent of the United States TransmittThg thee
to the International Joint—Commission,

ication
une 0,

2, for A roval of Certaifi’wost Tn Connect ion With
t e St. [awrence Seawa and Power ro ect, andian Ex-
5 T N o_f_ _t___fier aame Date,t Between ite C'a'n'a-dian

c an_ e o otes,

Government and Our Own *Concernin t. WLaw
ect. ouse_3?'fi_5resentatives Doc£_§2T n
in a Sess., l952. p*

rence _LO'F

ong.,

U.S. President, l953 (Eisenhower). Saint Lawrence Seawa ;
Dee -Water Dred in lgDCornwall Isian annels.
Treaties and Dtfier International Acts Series 3708, I957

 

. Saint Lawrence Seawa . Treaties and Other
national Acts Series 3, Department of Stat
Publication No. 5666, I955. *

Inter-
e

. Status and Pro ress of the St. Lawrence Seaway.
House 0? Representatives Doc. 7T2 35th Cong.,

lst Sess., i955
U.S. Statutes §£,Large. Vol. LXVIII. *

Vol. XXXVI. *

 

Books

Boggs, S. Whittemore. International Boundaries; A_Study of

Boundar Functions and Problems. NEw YOrk:
University Press, lgtO. *

Borchard, Edwin. Oginion on the Question Whether th

 

rence waterw x an ower Prolect an e onc
Execut ve greement with ana a or Reguires_ a T

Washington: ress 0? Byron S. ABEhs,

o umBTs

e St. Lawb
ud33.§x

reaty.
-*

Chevrier, Lionel. The St. Lawrence Seawa ;‘A Series of Mags.
Ottawa: TheԤ?[_tawrence Seaway Authority, '9 .

Corbett, P E The Settlement of Canadian-American

 

. . Dis ut s;
A Critical Study_ 0? MethBHs and Results. New Haven:

‘Yale Universnty Press,

Crandali, Samuel B. Treaties, Their Making and Enforcement.

2nd ed. Washington: JOhn Byrne an Company,

Dangerfield, Royden J. In Defense of the Senate; A
Treaty Making. NEFman: Un iversTty 0? DE] ahm

Stud ‘19
ress,

*

72

Edwards, Everett E. and Lowe, Edith J. References on the
Great Lakes- St. Lawrence Waterwa Tro ect. Val—XXX
o? Biographical ontrI utIons. as Ington,
Department oFAngcfilture,T§36. (Reproduced from type-
written copy.)

Falconer, Robert. The United States As a Nei hbour from a
Canadian Point 0? __IV'ew. Cambridge: Cambridge Un iver-
SItyPress, I923? *_-

 

Garner, James W. American Forei n Policies; An Examination
and Evaluation 0 ertain Traditional and Recent nter-
nationaiin Icies o? the United States— New Vork: New
York University FressT—TB

 

 

 

 

Great Lakes-St. Lawrence Association. The St. Lawrence Seawa
Pro'ect: Should the United States Fartici ate? Washi 9-
ton: Great Cakes-St. [awrence Association, |§§3. *

Hackworth, Green H. Di est of International Law. VoI.
washington, D.C: Government Printing Cifice, I9h3. *

Hyde, Charles C. International Law; Chiefl as Interpreted and

lied 2ft the United States. 3rd eé._ revised. 3 vols.

Coston: itt e Brown afid’Cm mpany, l9h5.

McClure, Wallace. International Executive A reements; Dema-
cratic ProcedfireiUnder the Constitution 0? the United

States. New York. Co I‘Tia University Fess, WIC— *

Menefee, F. N. The St. Lawrence Seawa Ann Arbor, Michigan:
Edwards Brothers, Inc. , I9

 

 

 

Miller, David H. (ed. ). Treaties and Other International Acts
of the U. S. of America. ‘—8 vols. Wa ashington, :
‘G3Vernment P?Tht ing CCfice, I93I. *

Moulton, Harold G. ,Morgan, Charles S. and Lee, Adah L. The
St. Lawrence Navi ation and Power Pro ect. Washington,
'UTC. Wreckings InstItut on, fi§2§.

Smith, Herbert A. The Economic Uses of International Rivers.
London: P.S. King and Son, [£37, |§3T1

Stephens, George W. The St. Lawrence waterwar Pro'ect; The
Stor of the St. Lawrence Kiver as an nternationa
' Ewa—

_q for Water-Borne Commerce. ‘HEntreaI: [ouis Car-
0.

I' CI" and 60.,

 

 

Sutherland, George. Constitutional Power and World Affairs.
New York: Columbia University Press, I

73

Tallamy, B. D. and Sedweek, T. M. Thei§£. Lawrence Seawa Pro-
lect. Buffalo: Niagara Frontier Planning Boar , 9557

Wright, C. P. The §£, Lawrence Dee Waterwa 3‘5 Canadian Ag:
Toronto: The Macmillan Company 0? Canada

raisal.
EImItea, I935. *
Articles and PeriodicaLs

"Arsenals versus CourtS," ThgflNew Republic, LIX (JU‘Y ‘7.
1929). 220. *

Borchard, Edwin M. "The St. Lawrence Waterway and Power Pro-
ject," American Journal'gf International Law, XXXXIII
(JUIY! lgigja El ' .

Briggs, Herbert W. "Treaties, Executive Agreements, and the
Panama Joint Resolution of l9h3," American Political
Science*RevIew, XXXVII, Part II (August,l953§, 536-

"Canada Legislates to Build St. Lawrence waterway,".1hg Chris-
tian Century, LXIX (January I6, 1952), 6l.

Conway, Eustace. "Treaties," Cycloeedia‘g; Political Science&)
' Po itica Economy, and t e o t ca History, III (I56 ,
'§§§7-—-' .

Garner, James W. "Acts and Joint Resolutions of Con ress as
Substitutes for Treaties," American Journal g_,lnterna-
tional Law, XXIX (July, I935}, KHZ-#88. *

Howe, C. D. "Development of the St. Lawrence Seaway," Vital
-§peeches, XVIII (February 15, I952), 28h-288.

 

Hyde, Charles C. "Constitutional Procedures for International
Agreement by the United States," Proceedin s of the
American Societ of International Law, 3|st‘flzetTng
(Washington, 7 , Ig-hb. *

Jessup, Philip C. "The Great Lakes-St. Lawrence Deep waterway
Treat ," American Journal.2fi International Law, XXVI
(Octo er, l932}, - . ""

Kunen, James L. "International Negotiations Concerning the St.
Lawrence Project," Universit ‘2: Detroit Law Journal,
XXXIII (November, 1955,, IE-ie. ;

Lawrence, Henrx. "Water Problems of the Canadian Boundary,"
“ Foreign ffairs, IV (July, I926), 556-573. *

7h

Levitan, David M. "Executive Agreements: A Study of the
Executive in the Control of the Foreign Relations of
the United States," Illinois L§w_Review, XXXV (December,
I940). 365-395.

McClendon, R. Earl. "The Two-Thirds Rule in Senate Action Upon
Treaties, I789-l90l," American Journal Qfi International
Law, XXVI (January, 1932), 37-5 .

. "Origin of the Two-Thirds Rule in Senate Action Upon
Trgagieség American Historical Review, XXXVI (July,
I9 ,7 - o .

McDougal, Myres S. and Lans, Asher. "Treaties and Congressional-
Executive or Presidential A reements: Interchangeable
Instruments of National Pol cy," Ihg,Yale L§w_Journal,

LIV (March, 1915), 181-351. * _

"Message of President sent to Conference of Canadian officials
In December, l9h0 " Bulletin (Department of State), III
(December 7, l9h0 , SIB.

Moore, John B. "Treaties and Executive Agreements" Political
Science Quarterly, XX (September, I905), 385- .

"Reply of State Department to MacKenzie King, May IO, l9Al,"
Bulletin (Department of State), IV (March 2, l9hl),

Sayre, Francis 8. "The Constitutionality of the Trade A reement
Acts," Columbi§_L§w,Review, XXXIX (May, l939), 75 -775. *

Simpson, William H. "Legal Aspects of Executive Agreements,"
‘ Iowa Law Review, XXIV (November, I938), 67- 8.

"United States-Canadian Construction of Power WOrks in St. Law-
rence River Authorized Text of order of authorization,
dissenting opinion, and the majority opinion of the
International Joint Commission dated October 29 -
November 28, I952," Bulletin (Department of State) XXVII
(December 29, I952), IOI§~I52h. *

Williams, Talcott. "The Peace of the Waterwa s: The Share of
the United States in Opening the World 5 Seas and Water-

ways," Proceedin s,g£ the American Societ of_1nternation-
al,Law, (Washington, l937), 35-55. 7th MeetTfig.

Wiley, Alexander, "The St. Lawrence Project Will Be Built,"
IDS Heartland, I (Summer, I953), 38-hl. *

 

75

Reports
Canada. International waterways Commission. Compiled Reports,

 

l905- I9I3. Ottawa. l9lh.

Canada. Temporary Great Lakes- St. Lawrence Basin Committee
and the United States St. Lawrence Advisory Committee.

Re orts, St. Lawrence Deep Waterway, International Rapids
Section ttawa: l.

 

Castle, Lewis G. Annual Re ort of the Saint Lawrence Seaway
Development Corporation,‘T§55.

Unpublisheg_flaterial'

-Brown, Ann D. (compiler), The St. Lawrence Nav_gation and Power
Pro' ect; A List of Recent *References. washihgton, D.

The EiEraryT 0 Congress, Division of Bibliography Novem-
ber ll 2. (Reproduced from typewritten copy. ).

Humphrey, Richard A., The St. Lawrence Seaway Pro' ect. wash-
ington, D. C. T? e LI rary. o ongress, eg 5 ative Ref-
erence Service, June, l9h (Reproduced from typewrit-

ten copy. ).

Saint Lawrence Seaway Development Corporation. Office of In-
formation. Seawa Biblio ra h Supplement to editions
of August I an cto er 5 (February8 , l956).
(Mimeographed.)

 

Shriver, Harry C. ABiblio ra h §gg_Historical Chronolo ,
Relating to the Proposefl International Great L3k¢$fl_£.
Lawrence'Deep_Waterway. Washington,fiU.C., (l§3§).
(Typewritten. )

 

Other Sources

Department of State. Personal Interview with George S. Vest,
Canadian Desk, January 25, l957. *

Saint Lawrence Seaway Development Corporation. Personal inter-
view with Raymond F. Stellar, Engineer, March 2l, I956.

*

APPENDIX

76

   
 
 
 
    
 
  
  
  
 
    
   
    
  
  
 
 
 
  
    
  
   
 
  
    

1 LE

 

   
  
 
 

l

  

DDUUC]

     
   
   
 
 

 

 

 

‘ ST ANDREWS R0

”~—

Um -
@BDQUED 00

[Tim
00000011558337“

' J ijJC)
/\L°c' " I‘aéBDULJ

.UQUDDUDU

GENO

STRUCTURES

WATER SURFACE
CHANNEL Innovtuturs
PARK LANDS

OVKEI

NEW TOIR SITES
RAIL-AV

HIGNIAYS 0 ROAD!

Ill NIGRIAY! I ROAD!
ORIGINAL SHORELINE
NEW SHORELINE

OVERLOOI

  

CORR-ALL
STATION

DBL,
DUE}

  
  

 
  

DD

   
 
  

  
 

BUD

\

  

AK‘ ‘5',
. \\:a

 
  
  
       
    
    

Ul“

       
  

%
5%

ST. LAWRENCE POWER PROJECT

 

PRESCOTT TO CORNWALL
GENERAL PLAN

THE HYDRO‘ELECTRIC POWER COMMISSION OF WTARIO
GENERATION DEPARTMENT

DATE - OCT. , I958

LL-?-L.‘I.T.L-'?

SCALE IN THOUSAPQS OF FEET

 

 

\
OLENOARRY

; l
...,—”.1

TWP. OF CHARLOTTENOURO

 

/
.’ "“‘Wfi LIIIt _LOILI

    

OF

ORNWALL

    
 

WP.OF C

of—uh