The American Commissioner International Boundary Commission ( Lawson ), to Mr. Charles A. Timm of the Division of Mexican Affairs
[Received June 14.]
My Dear Dr. Timm: I have received and read with much interest your letter of June 9, 194410 which enclosed a copy of a letter of June 7, 1944 from Secretary Ickes to the President in regard to the water treaty between the United States and Mexico, and particularly with reference to the question of jurisdiction as between the Department of State and the International Boundary Commission, and the Department of the Interior and the Bureau of Reclamation.
The Department of Interior’s letter refers to a number of conferences between representatives of the Department of State and the Department of the Interior, and cites in detail what is assumed by the Interior Department to be an informal agreement reached on April 25 in conferences on the mechanics of putting into legal effect an agreement on jurisdiction. The writer, who was present at this meeting, was not aware that even a tentative agreement on either jurisdiction or form was accomplished, nor do the notes made at this conference11 indicate any such agreement. Rather, they show that conferences were to be continued on the Whole subject. The position of the American Section of the International Boundary Commission, as stated on several occasions by the Commissioner, was to the effect that there was a necessity for some agreement upon the substance, rather than the form, of the mechanics and, since there has been a very definite showing as to the disagreement on these various important matters of jurisdiction and functions, there could be of course no reason to believe that an agreement upon the mechanics had been reached. So much has been written, and is of record, in regard to this jurisdictional question that it seems unnecessary to comment on the various ideas and suggestions made by certain officials of the Interior Department. These ideas indicate considerable misunderstanding of thee international matters, and a definite lack of conception as to [Page 1376] the responsibilities and duties involved and which are imposed upon the International Commission by existing treaty and therefore do not depend upon new treaty provisions. There is attached hereto a separate statement12 showing these authorizations and the necessity for the Commission’s acting with engineering understanding and capacity in many of the border international problems. Apparently the requirement for a composition of views and joint action by the two countries is lost sight of by the Interior Department in its belief that one country alone can formulate plans’ for international development. To follow through with the ideas proposed by Interior would lead to embarrassing commitments and a compromising position with Mexico that would be dangerous in effect. The fact is that the development of the Lower Rio Grande is a joint undertaking of the two countries through the established Commission as the proper agency for such an international undertaking. Other departments besides Interior are of course to be considered in any final arrangement but it is very highly probable that Mexico would seriously object to commitments reached otherwise than by the joint action of the Commission which is to be approved by the two Governments.
Storage works on the Lower Rio Grande are matters for joint consideration of the Commission as to location, design, specifications, costs and operation, and these matters must be jointly agreed upon and recommended to the two Governments by the Commission. It seems impossible for this office to agree with the Interior Department’s conception, which loses sight of such a joint arrangement and cooperative method which the two sovereign nations expect to be composed and agreed upon. The arrangement provided by Congress in the authorization and first appropriation for Project Number 5 on the Lower Rio Grande13 gives a positive indication of Congressional views on this question of jurisdiction. The Act provides in part as follows:
“… Provided Further, That the Secretary of State, with the approval of the President, shall designate the features of the project which he deems international in character, and shall direct such changes in the general project plan as he deems advisable with respect to such features; and the features so designated shall be built, after consultation with the Bureau of Reclamation as to general design by the American Section of the International Boundary Commission, United States and Mexico, and shall be operated and maintained by said Commission insofar as their operation and maintenance in such manner is, in the opinion of the Secretary of State, necessary because of their international character.…”
Pursuant to provisions of this Act, the Secretary designated the following features of the project to be purely international in nature [Page 1377] and to be constructed, operated and Maintained by the American Section of the International Boundary Commission:
“All storage and diversion structures and their appurtenant works, including canal headings and sluiceways which may be built on the international boundary portion of the Rio Grande.”14
The action of the Secretary in so designating these features pursuant to the Congressional mandate would seem to forceclose any question of jurisdiction as far as international storage and other works on the Rio Grande-are concerned.
It may be of interest to remark at this point that the Interior Department has not maintained a instruction; force many years, and all dams recently constructed have been built by contractors. In other words, the Bureau of Reclamation has no construction force and neither has the International Boundary Commission, but the construction of dams on the Lower Rio Grande must await the joint consideration of the Mexican Government and the United States Government as to the methods and other-important factors involved. Any decision to make commitments to another agency in advance of such joint international determination would be entirely inappropriate and constitute a serious breach of agreement.
Probably one of the most astounding and astonishing aspects of this present controversy is the importance which has been placed by the Interior department on these questions of jurisdiction, rather than upon the provisions of the water treaty itself; and while several individual expressions by prominent officials of the Bureau of Reclamation as to the distinct advantages to be obtained in carrying out this present allocation of international waters have been made, it is significant that no official comment has been received on that phase, of the subject whereas elaborate statements are made indicating objection to having international engineering work handled by an international Commission; all of which appears to be a device designed to give the Interior Department a determination in international matters.
In conclusion, it seems to me quite obvious that it is the function of the Department of State, as the treaty making agency, rather than the Department of the Interior, to interpret the provisions of the treaty and determine the method by which any such interpretation should be made effective.
In connection with the development of a statement by the two Commissioners interpreting certain articles of the treaty, but with no change in meaning, I expect to forward to the Department within [Page 1378] the next day or two such a statement16 which is the result of recent conferences with the Mexican Commissioner.
- Not printed.↩
- Memorandum of conversation, dated April 25, by Frank B. Clayton, Counsel for the International Boundary Commission, not printed.↩
- Not printed.↩
- Allocation of funds for the Valley Gravity Canal and Storage Project, Texas, under Public Law No. 136, June 28, 1941; 55 Stat. 338.↩
- Secretary Hull made this designation in a “Memorandum Concerning the Designation of International Features of the Valley Gravity Canal and Storage Project,” dated February 9, 1942, signed by the Secretary and approved by President Roosevelt.↩
- Memorandum of Understanding, dated June 10, 1944, p. 1380.↩