Foreign Relations of the United States: Diplomatic Papers, 1944, The American Republics, Volume VII

711.1216 M/2812

The American Commissioner, International Boundary Commission (Lawson), to the Secretary of State

El Paso, Texas, June 14, 1944.
[Received June 16.]

Sir: I refer to my telegram of May 26, 1944,¹⁷ suggesting the advisability of a joint memorandum by the two Boundary Commissioners on the jurisdictional questions which have been raised in connection with the water treaty signed at Washington on February 3, 1944, and to the Department’s letter of June 10, 1944,¹⁷ signed by Mr. J. F. McGurk, Chief, Division of Mexican Affairs, in which the view was expressed that such a joint memorandum would be of service in this matter.

Accordingly, I have engaged in conversations with the Mexican Commissioner, as a result of which we have agreed upon the text of a tentative memorandum on this subject to be submitted to the two Governments for their consideration. I enclose herewith three copies each of the English and Spanish text of this memorandum and one copy each of the letters of transmittal, signed by the two Commissioners,¹⁸ for the Department’s consideration and comments.

I presume that if this memorandum or one along similar lines is approved by the two Governments, the matter will be consummated by an exchange of notes between the two Governments which will be transmitted to the Senate and become a part of the record to be considered by that body in connection with the ratification proceedings, and thus become, in effect, a part of the treaty itself.

Such a procedure seems to me to be highly desirable in view of the controversy which has arisen with interior agencies over matters of jurisdiction. It will be recalled that in the conferences between representatives of the Department of State and of the Department of the Interior held in Washington last April,¹⁹ the representatives of the Department of the Interior insisted upon a protocol or exchange of notes or a Senate reservation to its advice and consent to ratification which would have the same force and effect as the treaty, and which would protect its existing or future jurisdiction over interior functions.

The present suggested approach to this problem seems to me to be the least objectionable of any that had been suggested, since it preserves control over the matter in the foreign relations departments of the two Governments where, in my opinion, it belongs.

It will be noted that the memorandum is general in its terms, laying down the broad general principles for an allocation of functions between the interior and international agencies rather than attempting to enumerate the specific functions to be performed and the specific facilities or works involved. This is deemed to be necessary for two reasons: in the first place, the provisions of the memorandum must relate equally to the two countries; in the second place, other agencies than that of the Department of the Interior may be involved, and the terms of the memorandum are accordingly made broad enough to cover any other domestic agency which may be involved in the discharge of treaty functions.

The representatives of the Department of the Interior objected to any interpretation of the treaty by the two Governments which was merely permissive in nature as far as the exercise of jurisdiction over interior works is concerned; that is, they desired the instrument to be employed to give affirmative protection to their jurisdiction rather than to imply some delegation of powers on the part of the Commission or the United States Section thereof. Consequently, the memorandum provides that treaty functions involving the use of works or facilities having a domestic as well as an international significance shall, rather than may, be performed by the particular interior agencies having jurisdiction over these works. It is believed that this should accomplish the purpose desired by the representatives of the Interior Department in having their powers spring from existing or future domestic laws and from the treaty itself, rather than from any delegation from the Commission or the American Section, which seemed to be distasteful to them.

The terms of the memorandum, I believe, protect the jurisdiction of interior agencies over interior works and facilities to be employed only in part for the discharge of treaty functions and, at the same time, preserves the jurisdiction of the Commission and its national sections over purely international functions. It also permits the use by the Commission or its national sections of public or private agencies in the construction of the international works.

I should appreciate having the Department’s advice and comments on the proposed memorandum and the suggested manner of approach to the solution of this problem.

Very truly yours,

L. M. Lawson

[Enclosure]

Draft of Proposed Joint Memorandum²⁰

June 10, 1944.

Memorandum of Understanding Between the Governments of the United States of America and the United Mexican States with Respect to Certain Jurisdictional Phases of the Treaty Between the Two Countries, Signed at Washington on February 3, 1944, Relating to the Utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande from Port Quitman, Texas, to the Gulf of Mexico

It is the agreement and understanding of the two Governments that:

Wherever, by virtue of any provision of the treaty between the United States of America and the United Mexican States, signed at Washington on February 3, 1944, relating to the utilization of the waters of the Colorado and Tijuana Rivers and of the Rio Grande from Fort Quitman, Texas, to the Gulf of Mexico, specific functions are imposed on either Section of the International Boundary and Water Commission involving the construction or use of facilities or works, whether for the storage or conveyance of water, flood control, stream gaging, or for any other purpose, and which are situated wholly within the limits of the country of that Section, and which are to be used only partly for the performance of treaty provisions, such functions shall be performed, and such facilities or works shall be constructed, operated and maintained, by any Federal agency of that country which now or hereafter may be authorized by domestic law to construct, or to operate and maintain, such facilities or works. Such functions shall be exercised in conformity with the provisions of the treaty and in cooperation with the respective Section of the Commission, to the end that all international obligations and functions may be coordinated and fulfilled. The works to be constructed on or along the boundary, and those to be used exclusively for the discharge of treaty provisions, shall be under the jurisdiction of the Commission or of its respective Section, in accordance with the provisions of the treaty, and the respective Sections may, so far as practicable, make use of any competent public or private agencies in carrying out the construction of such works, in accordance with the laws of the respective countries.

17. Not printed.
17. Not printed.
18. Letters of transmittal not printed.
19. April 15 to April 25.
20. A copy of this draft memorandum was sent to President Roosevelt under date of June 29, 1944.